Recreational Holdings 1 (Jamaica) Ltd v Lazarus (Jamaica)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilson |
| Judgment Date | 27 July 2016 |
| Neutral Citation | [2016] UKPC 22 |
| Date | 27 July 2016 |
| Docket Number | Appeal No 0085 of 2015 |
| Court | Privy Council |
[2016] UKPC 22
Lord Neuberger
Lord Mance
Lord Wilson
Lord Carnwath
Lord Hodge
Appeal No 0085 of 2015
Privy Council
From the Court of Appeal of Jamaica
Appellant
Peter Knox QC Dr Lloyd Barnett Weiden Daley
(Instructed by Simons Muirhead and Burton)
Respondent
Allan S Wood QC Miguel D A Williams
(Instructed by M A Law (Solicitors) LLP)
Heard on 13 June 2016
THE OPINION OF THE BOARD WAS DRAFTED BY
A is the registered proprietor of land in Jamaica. Without A's permission, B takes possession of the land and remains in open and undisturbed possession of it for more than 12 years. Thereafter A sells (or purports to sell) the land to C. C provides valuable consideration and has no notice of B's possession of the land. Who owns the land … B or C?
Recreational Holdings 1 (Jamaica) Ltd ("the company") appeals against the order of the Court of Appeal of Jamaica dated 30 September 2014. By a judgment delivered by Morrison JA, with which Panton P and Phillips JA agreed, the court, save in one irrelevant respect, dismissed the company's appeal against an order of Kirk Anderson J ("the judge") dated 19 September 2012. By his order, the judge, by way of summary judgment, held that ownership of certain land which was in dispute between the company and Mr Carl Lazarus, the respondent to the present appeal, was vested in Mr Lazarus.
The disputed land is an area of nine acres in the parish of St Thomas, adjacent to the Yallahs River. It forms part of a parcel of land of more than 300 acres known as Windsor Lodge, located partly in the parish of St Thomas and partly in that of St Andrew.
In 1978 Windsor Lodge was first brought under the operation of the Registration of Titles Act ("the Act") pursuant to the procedure set out in sections 24 to 42. The Registrar of Titles thereupon registered Mr Clinton McGann as the owner of Windsor Lodge.
In 1987 the Registrar registered Mr Lazarus as the owner of about 27 acres of land in the parish of St Thomas. He had purchased the land in 1985. Of those 27 acres, 18 adjoin Windsor Lodge to the east. The remaining nine acres represent—unfortunately—the disputed land itself. The dual registration of the disputed land in favour of different apparent owners was to precipitate in the lower courts a particular line of argument now no longer pursued.
Unsurprisingly Mr Lazarus regarded himself as the owner of the disputed land. The evidence given by him and on his behalf, to which, according to the trial judge, the company had no real answer, was that in 1986 he had erected a wire fence around what he understood to be his property, thus including the disputed land within the fence; that at about the same time he built a wooden shed on it for storage; that in 1987 and 1988 he constructed a small concrete house on it, where he stayed at weekends; and that from 1985 onwards he had been planting trees on it, including coconut, guava, avocado, naseberry, papaya and banana, and harvesting the fruit.
In 1999 it came to the attention of Mr Lazarus and apparently also of Mr McGann that the disputed land was registered as belonging to each of them. In a letter to the Registrar dated 22 October 1999, attorneys instructed by Mr Lazarus claimed that the inclusion of the disputed land within Mr McGann's title to Windsor Lodge had been in error. But it is unclear what action, if any, the Registrar took in response to the letter; and neither of the registered owners took any further step to resolve the contradiction. The evidence of Mr Lazarus was that, following the date of the letter, his open, undisturbed, exclusive and intentional possession of the disputed land, which had begun (so it will be safe to assume) in 1986, continued for a further 12 years, ie until 2011.
In February 2011 Mr McGann sold, or purported to sell, to the company all the land comprised in the title to Windsor Lodge at a price of Jamaican $33.4m. In April 2011 the company was registered as the new proprietor of Windsor Lodge. In July 2011 it erected a fence around the disputed land; and within weeks proceedings to resolve the dispute about ownership of the land were issued, first by the company and then also by Mr Lazarus. The company relied on its certificate of title to the land. Mr Lazarus relied on his adverse possession of it since 1986, and the legal effect allegedly ascribed to it by the conjunction of sections 3 and 30 of the Limitation of Actions Act ("the Limitation Act"). Section 3 provides:
"No person shall make an entry [on to land], or bring an action … to recover any land … but within 12 years next after the time at which the right to make such entry, or to bring such action …, shall have first accrued …"
Section 30 provides:
"At the determination of the period limited by [section 3] to any person for making an entry, or bringing any action …, the right and title of such person to the land … for the recovery whereof such entry, action … might have been made or brought within such period, shall be extinguished."
The judge held, without objection on the part of Mr Lazarus, that, of the two registered titles to the disputed land, the effective registration was that in favour of the company. Section 70 of the Act, to which the Board will return in para 16 below, provides that:
"… the proprietor of … any estate or interest in land under the operation of this Act shall, except in case of fraud, hold the same as the same may be described or identified in the certificate of title, subject to … [recorded] incumbrances … 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 …"
Mr Lazarus' certificate of title had not been registered prior to registration of the certificate of Mr McGann. So the latter prevailed.
Nevertheless, in contending that it had a real prospect of successfully defending his claim to ownership of the disputed land by adverse possession, the company sought to rely on Mr Lazarus' certificate of title. Its main argument before the judge, which remained its first ground of appeal to the Court of Appeal, was that Mr Lazarus' possession could not be adverse if it arose under cover of a registered title. The company relied, for example, on the observation of Lord Millett in a judgment delivered on behalf of the Board in Ramnarace v Lutchman, [2001] 1 WLR 1651, at para 10 that "[p]ossession is not normally adverse if it is enjoyed by a lawful title or with the consent of the true owner". But the difficulty for the company's argument was, as the judge and the Court of Appeal both held, that Mr Lazarus' registered title, far from being lawful, was entirely ineffective.
Before the Court of Appeal, however, the company added a second ground of appeal; and this is the ground which, although rejected by that court, it pursues before the Board. The ground is that, by reason of the Act, the title to the disputed land registered in 2011 in the name of the company, as the bona fide purchaser of it for value, could not be displaced by any period of adverse possession, such as that of Mr Lazarus, which had begun prior to the registration in 2011.
The company's reliance upon this ground faces an initial difficulty. It is in conflict with the opinion of the Board on an appeal from the Court of Appeal of Jamaica in Chisholm v Hall [1959] AC 719.
In the Chisholm case the parties owned adjoining properties at 105 and 103 King Street in Kingston. In 1902 a fence was erected to mark the boundary between them. Unfortunately it was erected in the wrong place. It purported to enclose within the property at 105 King Street a strip of land about seven feet wide which was then part of the property at 103 King Street ("the disputed strip"). In 1928 the then owner of 105 King Street sold it to D. On 12 March 1928, in anticipation of the sale, the vendor brought 105 King Street under the operation of the Act by registering herself as its proprietor and on 16 April 1928 D was registered as its proprietor instead. From 1928 onwards, because of the misalignment of the fence, D was in continuous, open, adverse possession of the disputed strip. The adjoining property, namely 103 King Street, had come under the operation of the Act in 1901; and in 1919, following the death of the registered owner, the Administrator General, as administrator of his estate, was registered as its proprietor instead. In 1941 the Administrator General came to sell 103 King Street but he discovered that he had lost the certificate issued in 1919. So on 16 October 1941 he obtained a replacement certificate and this enabled him to sell the property to P, whose title was registered a fortnight later (30 October 1941). P was a bona fide purchaser of it for value.
In the Chisholm case it was in 1951 that P brought his claim against D to be entitled to the disputed strip. One of D's defences, being the defence which prevailed before the Board, was that he had been in adverse possession of it for 12 years prior to 1951 and so had then become its owner under sections 3 and 30 of the Limitation Act. Clearly he could not establish 12 years from the date in 1941 when the replacement certificate was issued to the Administrator General nor indeed from the date a fortnight later when P became its registered proprietor. The opinion of the Board, however, was that D was entitled to rely, even as against P, on his adverse possession of it ever since 1928.
Now it is true that in the Chisholm case the optimistic submission of P before the Board was that the period of D's adverse possession had ended—and so had needed to start to run again – on 16 October 1941, when the replacement certificate was issued to the...
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