As I mentioned in a previous article, the issue of adverse possession has also engaged the attention of the Caribbean Court of Justice (CCJ).
Two such cases are TOOLSIE PERSAUD LTD. v ANDREW JONES INVESTMENT LTD. and OTHERS (2008) CCJ5 and LACKRAM BISNAUTH v RAMANAND SHEWPRASHAW ET AL (2009) CCJ8.
Both cases are appeals from the Guyana Court of Appeal and are important because in both important points of principle have been endorsed or laid down by the court.
In the first mentioned, in a joint judgment delivered by then President of the CCJ, Michael De La Bastide and Justice David Hayton, the court, among other things, clarified the position where an “adverse possessor” occupies land mistakenly believing that he is the true owner. It also addressed the elements that must be proved to establish adverse possession.
I quote the relevant portions of the judgment omitting the case references in the footnotes and some aspects of the discussion because of space constraints.
[24] “. . . WHAT IS THE REQUISITE INTENTION TO POSSESS?
“The Court of Appeal was clearly correct in holding that the requisite intention to possess is present when the claimant in factual possession of the land is intending to make full use of it in the way an owner would. Indeed, it was once thought that animus possidendi necessarily involved an intention to own or to acquire ownership of land or to exercise acts of ownership over it.”
Slade LJ, however, in Buckingham CC v Moran made it clear that “there are some dicta in the authorities which might be read as suggesting that an intention to own the land is required.
I agree with the judge that “what is required for this purpose is not an intention to own or even an intention to acquire ownership, but an intention to possess” – that is to say for time being to possess the land to the exclusion of all other persons, including the owner with the paper title.
[25] This last clause raised problems in some minds where the factual possessor has mistakenly believed himself to be the owner with the paper title, because he cannot have the intention to exclude himself. However, the cited passage is not part of an Act of Parliament. The intention to exclude the world at large (including the true owner if other than the factual possessor) is what is required. An intention to have exclusive control of the land, mistakenly believing oneself to be the true owner, suffices.
[27] We endorse the following remarks of Lord Browne-Wilkinson in the leading case, JA Pye (Oxford) Ltd v Graham.
“Much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Act. The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner . . . Except in the case of joint possessors, possession is single and exclusive.
“Therefore if the squatter is in possession the paper owner cannot be . . . 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 behalf and for one’s own benefit (“intention to possess”).”
[28] Thus, the position is that a claimant to land by adverse possession needs to show that for the requisite period he (and any necessary predecessor) had
(i) a sufficient degree of physical custody and control of the claimed land in the light of the land’s circumstances (“factual possession”) and
(ii) an intention to exercise such custody and control on his own behalf and for his own benefit, independently of anyone else except someone engaged with him in a joint enterprise on the land (“intention to possess”).
[29] This latter requirement serves to make it clear that the factual possessor is not merely the landowner’s licensee or tenant or trustee or co-owner but is independently in possession, so that it is obvious to any dispossessed true owner (or any true owner who has discontinued possession of his land) that he needs to assert his ownership rights in good time if he is not tolose them.
Intention to possess thus extends to a person intending to make full use of the land in the way in which an owner would, whether he knows he is not the owner or mistakenly believes himself to be the owner [for example] due to a misleading plan or forged document or a compulsory acquisition order subsequently held to be ineffective to vest the land in the state.
The court also addressed the issue of how do you stop time running in favour of a person in undisturbed possession at paragraph 43 of the judgment in the following words:
“In our view, if a dispossessed landowner is to stop time running in favour of the person in undisturbed possession of the land he must bring proceedings against the person. Alternatively, of course, the landowner could physically enter the land and take possession thereof, but the danger of breaches of the peace and resultant criminal proceedings are better avoided, especially if the person in possession is likely to resist the landowner.”
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected].
