[1] Andre Winter as Personal Representative of Elpert Winter (Deceased) [2] Stephen Winter Appellants v Charles Richardson Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: EDWARDS J.A. [AG.]
• Judgment Date: 22 April 2008
• Judgment citation (vLex): [2008] ECSC J0422-1
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: HCVAP 2006/025
• Date: 22 April 2008

[2008] ECSC J0422-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Justice Denys Barrow, SC Justice of Appeal

The Hon. Mde. Justice Dancia Penn-Sallah, QC Justice of Appeal [Ag.]

The Hon. Mde. Justice Ola Mae Edwards Justice of Appeal [Ag.]

HCVAP 2006/025

Between:

[1] Andre Winter As Personal Representative Of Elpert Winter (deceased)

[2] Stephen Winter

Appellants

and

Charles Richardson

Respondent

Appearances:

Mr. Dane Hamilton Q.C. and Mr. John Fuller for the Appellant

Mr. Hugh Marshall and Ms. Cherissa Thomas and Mr. Mark Harris for the Respondent.

Land Law — Crown lands — Gratuitous Licensee — Bare Licensee — Tenant at will — Trespasser in factual possession — Registered Land Act Cap 374 — Slum Clearance and Housing Act Cap 404 — Town and Country Planning Act Cap 432 — Crown Lands (Regulation) Act Cap 120

Tort — Trespass to land

Damages — Special damages — Nominal damages

The respondent began squatting on parcel 280 in the early 1970s and was later given permission to occupy the land by the then owner (Mr Punter). Upon the death of Mr Punter, the land was sold to the government. Over the years, the respondent sought, unsuccessfully, to obtain title to the land. In March 1990, the respondent began stockpiling sand on the land and subsequently built a wooden structure upon it from which he operated his business. COVE, a limited liability company of which the deceased was a shareholder and the second appellant the maintenance manager, paid a deposit on the purchase price for parcel 280 to the Central Housing and Planning Authority (CHAPA) in June 1990; payment being completed in June 1991. The Land Certificate was issued in favour of the deceased on 30th March 1995. In June 1991, the respondent was given 15 days' notice to cease his occupation of the land. Upon the expiration of this period, the deceased and the second appellant demolished the respondent's wooden structure.

Held, dismissing the appeal and awarding costs to the respondent:

• (1) The rights of a person in actual occupation under section 28(g) of the Registered Land Act Cap 374 (the Act) are not protected as an overriding interest where that person is a bare or gratuitous licensee. The respondent, who was inferred to have been a bare or gratuitous licensee, did not have a right which could be protected as an overriding interest. Further, a gratuitous or bare licence is revoked by the death of the licensor/licensee or by an assignment of the land over which the licence is granted. The respondent's bare or gratuitous licence determined on the death of the licensor/owner of the land (Mr. Punter).

  National Provincial Bank Ltd. v Ainsworth [1965] AC 1175 applied. Spiricor of St. Lucia Ltd. v Attorney General of St. Lucia and Another (1997) WIR 123 and Ulina Jennifer George v Hilary Charlemagne Saint Lucia Civil Appeal No 24 of 2001 followed.

• (2) The owner's affirmative consent is essential to the creation of a tenancy at will. No such consent having been given by the Crown or CHAPA, the respondent was not a tenant at will or a bare licensee, but a trespasser.

  FBO 2000 (Antigua) Limited v Vere Cornwall Bird Jnr, Attorney General of Antigua and Barbuda, Stanford Development Company Antigua and Barbuda Civil Appeal No 30 of 2003 distinguished. Stanford International Ltd. v Austin Lapps Privy Council Appeal No. 19 of 2005 applied.

• (3) The respondent was in factual possession of the land and could only be dispossessed of it by the true owner (the Crown or CHAPA).

• (4) COVE, at the time of eviction, had only an equitable interest in the land. The deceased had no interest in the land until it was vested in him as proprietor on 30th March, 1995. There was no evidence that the Crown or CHAPA gave affirmative consent to COVE or to the deceased to take possession of the land; and such consent cannot be implied. The self-help remedy of forcible eviction accordingly was not open to COVE or to the deceased. The forcible eviction of the respondent by the deceased and the second appellant was therefore premature and unlawful in that it constituted a trespass against the respondent's possession.

  J A Pye (Oxford) Ltd. and Others v Graham and Another [2002] UKHL 30 applied. Wuta-Ofei v Danquah [1961] 3 All ER 596, Oceans Estates Ltd. v Pinder [1969] 2 AC 19, McPhail v persons, names unknown, Bristol Corporation v Ross and Another [1973] 3 All ER 393 distinguished.

• (5) Trespass is an injury to a possessory right. The respondent was accordingly entitled to be compensated for the loss and damage occasioned by the trespass.

• (6) It is permissible for the court to make an award of nominal damages where special damages are unproven.

  Attorney General of Antigua v Estate of Cyril Thomas Bufton Antigua and Barbuda Civil Appeal No. 22 of 2004 which applied Greer v Alstons Engineering Sales and Services Ltd. [2003] UKPC 46 followed.

EDWARDS J.A. [AG.]

1 This is the judgment of the court. This appeal raises the pivotal question as to whether or not on the 26th June, 1991, Mr. Elpert Winter (deceased) and the second appellant, without a court order, were entitled to forcibly remove the respondent as a trespasser from land known as parcel 280 which he had been occupying for more than 15 years. The respondent had begun occupying this land when a Mr. Punter was the owner, and continued his occupation of it after the Government had acquired it. On the 2nd November 2006, Thomas J determined that the respondent/claimant was a licensee and not a trespasser, who was entitled to more than the 15 days notice that was given for him to cease his occupation of parcel 280. The deceased, whose company had recently completed paying the Government the purchase price for the parcel entered on the land with the second appellant, and evicted the respondent, by using a bulldozer to demolish the wooden building and level the stockpiled sand that the respondent had on the land.

2 The learned judge awarded to the respondent against the appellants jointly and severally, the sum of $68,500.00 as special damages, $22,500.00 as general damages, with interest, and prescribed costs in accordance with Part 65.5 of the Civil Procedure Rules 2000 ( CPR 2000). The appellants have challenged: (a) the relevant findings of fact and law that there was an equitable licence in favour of the respondent; (b) the learned judge's assessment of the evidence and application of the law in arriving at his conclusions that the respondent was a bare licensee, and at least a licensee or a tenant at will; and (c) the sum awarded as damages. The action was commenced by writ of summons filed on the 10th January 1995.

Background Facts

3 Mr. Elpert Winter who died on the 3rd June 2004, became registered owner of the land known as Parcel 280 Block 42 1992B, Registration Section: Cassada Gardens and New Winthropes, on the 30th March 1995. The second appellant is the brother of the deceased, and maintenance manager at Cove Enterprises Limited (COVE). The deceased was a shareholder of COVE. On the 13th June 1990, COVE paid a deposit on the purchase price for parcel 280 to Central Housing and Planning Authority (CHAPA). The function and authority of CHAPA is of some significance in this litigation, and this will be dealt with later on in the judgment. The respondent was in occupation of this parcel before and during the deceased's purchase negotiations with the Government.

4 The only evidence at the trial as to how the respondent came to be on parcel 280 came from the respondent. He began squatting on parcel 280 in the early 1970's. He had obtained permission to occupy the land from Mr. Punter, after he was informed by Mr. Punter that he was the owner of parcel 280 around the time of the Cadastral Survey in 1974. Mr. Punter had promised to sell parcel 280 to him as soon as the dispute that Mr. Punter had with the Government concerning lands including parcel 280 had been cleared up. The respondent received information that the Government acquired Mr. Punter's estate including parcel 280 from Mr. Punter's daughter after Mr. Punter died around 1986 or 1987.

5 The respondent went to CHAPA and was referred to the deceased whom he told about his squatting on parcel 280, Mr. Punter's promise to sell this parcel to him, his desire to purchase it along with parcel 281, and the plans he had for the use of the land. The respondent's testimony is inconsistent as to when he went to CHAPA and spoke to the deceased who was the head of that authority. In his witness statement he deposed that this was after he learnt that Government had bought the land from Mr. Punter's daughter upon Mr. Punter's death, but under cross examination he said he went to CHAPA in 1978, and that all of these events took place in 1978. The deceased requested that he return to CHAPA a week or two thereafter, and upon his return, the deceased told him that he would get parcels 230, 239 and 165 and they would reconsider allocating the lands in parcels 280 and 281 to the respondent. Subsequently, in December 1989 when the respondent went back to CHAPA to arrange to finalise the purchase of parcels 280 and 281, one Mr. Mason found notes in a log book confirming that parcel 281 had been allocated to him. Mr. Mason found that the page next to the page where the allocation of parcels 230, 229 and 165 had been entered was torn out from the main ledger and told him then that in order for him to get title to parcel 280 he needed a letter from the Minister since it was Crown land.

6 In January 1990, the deceased visited the respondent at his business place on Long Street, and upon learning about the difficulty he was having in getting to see the Minister about purchasing parcel 280, the deceased offered to assist him, and promised to speak to and convince the Minister on his behalf. In March 1990, the respondent began stockpiling sand on parcel 280 which came from his property at Cove Head. In...