Smith (Personal Representative of Hugh Smith (Deceased)) and Others v Molyneaux (British Virgin Islands)
| Jurisdiction | UK Non-devolved |
| Judge | Dame Mary Arden |
| Judgment Date | 21 November 2016 |
| Neutral Citation | [2016] UKPC 35 |
| Court | Privy Council |
| Docket Number | Appeal No 0064 of 2013 |
| Date | 21 November 2016 |
[2016] UKPC 35
Privy Council
From the Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands)
Lord Neuberger
Lord Kerr
Lord Reed
Lord Hughes
Dame Mary Arden
Appeal No 0064 of 2013
Appellants
Catherine Newman QC Asha Johnson (Instructed by Blake Morgan)
Respondent
David di Mambro Andrew Brown (Instructed by Howard Kennedy LLP)
This appeal is from the order of the Court of Appeal of the Eastern Caribbean Supreme Court dated 18 April 2012 allowing an appeal from the order of Ross J dated 24 September 2009. In these proceedings, the appellants, to whom the Board will refer as the Smiths, claim possession of certain land at Parcel 40, Block 2335B, Mount Sage Registration Section ("the Property") from the respondent, Mr Molyneaux, who has resided there for very many years. The central issue raised by the appeal is whether the Smiths gave permission to Mr Molyneaux to occupy the Property so that he could not, as he claims, acquire a squatter's title by adverse possession.
Under section 135(1) of the Registered Land Act, an occupier of land may acquire title to it from the registered owner if (among other things) he has possession of it without the owner's permission. Section 135(1) provides that:
"The ownership of land may be acquired by peaceable, open and uninterrupted possession without the permission of any person lawfully entitled to such possession for a period of 20 years."
The registered owner cannot, however, allow 20 years to elapse before interrupting the possession of an occupier because under section 6(3) of the Limitation Act his right of action is barred after 12 years from the date on which the right of action accrues to him. Under section 7(1) of the Limitation Act, the right of action accrues to him on the date on which he is dispossessed.
The history of this matter covers a considerable period of time but the material facts may be briefly stated. The Property has been in the Smith family's hands for many years and accordingly, where appropriate, when the Board refers to them, it includes the family members who were their predecessors in title. The Property was originally acquired by Mr Alexander Smith, now deceased, in about 1920. The third appellant, Mr Leroy Smith, is his grandson.
When Mr Alexander Smith acquired the Property, Ms Victoria Cameron was one of the people living on the property. Mr Alexander Smith did not seek to remove her. Rather he permitted Ms Cameron to remain on the Property, until the family chose to develop it, under an informal arrangement described as a sharecropping arrangement: she could live there and farm the land until it was required for development, and she would give some produce to the Smiths. Ms Cameron occupied two or three shacks but these proceedings are now concerned only with one of those shacks ("the Shack"), which she used as her bedroom.
In about 1956 Mr Molyneaux came on the Property. He and Ms Cameron were married in 1963. They lived in the Shack. It is common ground that, because Ms Cameron had been given permission to live on the Property, she could not acquire title to it by adverse possession, and that that permission terminated on her death.
Ms Cameron died on 16 August 1992. Mr Molyneaux continued to live at the Property without interruption from the Smiths. The 12-year period from Ms Cameron's death expired on 17 August 2004. A major issue at trial was whether there had been oral communications between him and Mr Leroy Smith in that period about Mr Molyneaux staying on the Property.
On 25 August 2006, and again on 2 January 2007, the Smiths served notices to quit on Mr Molyneaux as they now wished to develop the Property. Mr Molyneaux refused to comply and asserted that he had acquired title to the Property by adverse possession. At about this time, the Smiths' solicitors asked Mr Molyneaux to sign a licence to occupy the Property and he declined to do so.
In April 2007 the Smiths brought proceedings against Mr Molyneaux seeking declarations that he was a licensee of the Property and that the notice to quit dated 25 August 2006 had revoked that licence, together with an order for possession. In their statement of case, the Smiths relied on the grant to Mr Molyneaux of oral permission, but Mr Molyneaux in his defence denied that the Smiths had given him any such permission.
Trial took place in July 2009. Ross J heard a number of witnesses, including Mr Leroy Smith and Mr Molyneaux. Ross J made a site inspection in the presence of the parties.
Mr Leroy Smith gave evidence in writing and orally. In his witness statement, Mr Leroy Smith described how he had visited the Property after 1992 to assess the logistics for the proposed development of the Property. He stated that on more than one occasion he had had meetings with Mr Molyneaux reminding him of the Smiths' plans to develop the Property.
In cross-examination, Mr Leroy Smith confirmed that he had had several conversations with Mr Molyneaux at the Property after Ms Cameron's death. He said that he had told Mr Molyneaux on several occasions that, when the Smiths wanted to develop the Property, he would be given notice that he would have to leave. He said at a later point in his evidence that, as it was the Smiths' property, Mr Molyneaux could only be a licensee. He accepted, however, that there had been no conversation in which Mr Molyneaux was given permission.
The transcript records. Mr Leroy Smith's cross-examination as including the following:
A. Well in my conversations with the defendant, I had alerted him that we intended to develop the Property and at which point we would give him notice so he could vacate. It was not just Mr Molyneaux, it was all of the occupants of that property.
Q. Isn't it correct, Mr Smith, and I have to specifically put this to you, that ever since Miss Cameron died, Victoria Cameron, have you been asking this defendant, and when I say, I don't mean you, but are you aware that anyone has been asking this defendant to leave the property?
A. Officially the first time that Mr Molyneaux got a letter from us was through our attorney and that letter, which you just showed me, was dated 2007. I don't think we ever asked, but we did alert him to the fact that we intend to develop the property and at which point we would give him due notice that he would have to leave. But the first official act of asking was when our attorneys issued that letter to Mr Molyneaux. (Transcript, p 157)
At a later point in his evidence, Mr Leroy Smith was asked some further questions about his conversations with Mr Molyneaux. He said that he could not remember any particular conversation in which Mr Molyneaux had been given permission to stay:
Q. Who had those discussions with Mr Molyneaux, according to you?
A. I don't think there was ever a particular discussion about Mr Molyneaux staying on the land. In our mind, it was our property and if we let them stay there, it's with our permission.
Q. So in your mind, according to you, it's your property, and you would just, as you just said, let him stay there. So there was no real discussion between you and Mr Molyneaux?
A. There was no discussions about me saying Mr Molyneaux, you have my permission to stay on the property.
Q. No discussion, thank you. (Transcript, pp 172–173)
Mr Molyneaux in his evidence consistently denied that he had ever met Mr Leroy Smith prior to 2007 or that he had ever had the conversations to which Mr Leroy Smith referred.
The judgment of the trial judge is particularly brief. Paragraph 13 of his judgment deals with Mr Molyneaux's relationship with the Smiths and sets out his rejection of Mr Molyneaux's claim:
"13. The conduct on both sides appears to have been substantially relaxed. The claimants did not move to eject the defendant until by the defendant's actions, in 2004, he appeared to be exercising rights akin to ownership of the lands. Prior to that date, the relationship between the defendant and the claimant was not one of open notorious exclusive adverse position, but that of an occupier of lands to which the claimants had proper title and against which accommodations were being granted. Other persons occupying other lands in the area and who acknowledged the claimants as owners crossed the disputed land at will to access the lands in the larger parcel."
In the next paragraph of his judgment, the judge explained which evidence had weighed most heavily with him:
"14. I find that the evidence as set out in the witness statements and as heard at trial through amplification and cross examination, the evidence of the claimants as a collective, is substantially stronger to that of the defendant. From time to time, the defendant appeared confused with respect to relevant meetings, their location and time. His evidence was in conflict with the survey advanced by him for the purpose of the court identifying the lands subject to this dispute and the evidence of licensees claiming possession under the claimants."
Ross J accordingly made an order that Mr Molyneaux give up possession of the Property to the Smiths. Mr Molyneaux then appealed to the Court of Appeal of the Eastern Caribbean Supreme Court. At the appeal hearing, Mr Molyneaux limited his claim to the Shack, and therefore gave up any claim to the surrounding parts of the Property. This does not affect the issue of any permission from the Smiths which, if given and given in time, would override Mr...
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