IN THE SUPREME COURT OF
THE TURKS AND CAICOS ISLANDS
ACTION NO. CL-89/2019
(1) NEMIAH MISSICK
(2) MRS. DANIELLE MISSICK
CORAM: AGYEMANG CJ
MR. SELVYN HAWKINS OF MISICK & STANBROOK FOR THE PLAINTIFFS
MR. ROBERT D’ARCEUIL OF D’ARCEUILS FOR THE DEFENDANT
HEARD ON 8 & 16 DECEMBER, 2020
HANDED DOWN ON 23RD FEBRUARY 2021
1. By an originating summons, the plaintiffs herein sought against the defendant, inter alia, an order that the defendant pull down, and remove that portion of a building built by the defendant, his employees or agents on the plaintiffs’ land at Block 7, Parcel 32, Cheshire Hall & Richmond Hill; damages for trespass, and interest on the damages assessed for the plaintiffs.
2. The defendant filed an affidavit in opposition to the plaintiff’s affidavit filed in support of his claim.
3. At the hearing of the originating summons, it being apparent that there were issues regarding the title to the land on which the defendant had put up the offending structure, the court held that the matter could not be determined in an originating summons as issues of fact had to be determined. Clearly, the matter ought to have been begun by a writ of summons, for the issues to be properly ventilated in an action.
4. The court was however not minded to turn away the parties by reason of the improper originating process, and made orders under Order 28 r. 8 of the Civil Procedure Rules 2000 (CPR) for the suit to be heard as one begun by writ. Thus was an order made for the matters set out in the affidavits, to stand as pleadings: the plaintiffs’ as the statement of claim, and defendant’s as his statement of defence.
5. As permitted by the court, the plaintiff went ahead to file a more comprehensive affidavit and abandoned the original one. The defendant relied on his affidavit already filed. This was the state of affairs when hearing of the suit commenced.
6. The case of the plaintiff will be summed up as follows: On 8th February 2016 the plaintiffs (husband and wife), acquired title as joint owners of a parcel of land described as Block 7, Parcel 32, Cheshire Hall & Richmond Hill, Providenciales with an approximate land area of 0.42 acres, registered as: Title No. 60707/32.
7. In or about 2017, the first plaintiff engaged a surveyor to place boundary markers around the perimeter of the land. It was during this exercise that he noticed that a building under construction, an apartment unit built as an extension to an existing building on Parcel No. 60707/36, encroached upon the plaintiffs’ land: Parcel no. 60707/32.
8. It was the first plaintiff’s evidence, that upon his discovery of the encroachment, he advised the defendant whom he fortuitously found on the land that day, of it. The defendant allegedly admitted the encroachment and allegedly indicated his preparedness to compensate the plaintiffs for it, even suggesting a mutation of the plaintiffs’ land to enable him to pay for the area of encroachment. He then allegedly promised to return to the plaintiff within two weeks with a proposal to resolve the issue. He did neither of these.
9. The first plaintiff, desirous of resolving the matter, in alleged reliance on this alleged discussion, applied to the Department of Planning for permission to mutate the Parcel with the hope that the defendant would concede to a purchase of the land he had encroached upon, an area found to be 0.06 acres upon a survey. The first plaintiff also communicated to his attorneys of the defendant’s willingness to settle the matter amicably. The defendant however failed to resolve the matter with the plaintiffs or to promptly respond to the letter before action written on behalf of the first plaintiff by his attorneys.
10. The plaintiffs then commenced the present suit and had their originating summons served on the defendant. It was then that the defendant responded to the letter before action sent to him about seven months before. He also apparently waited for three weeks and two days before the hearing date to file his response and for his attorney to claim a purported right of prescription over the encroached land.
11. The first plaintiff averred that the structure on the encroached portion, was an illegal add-on to the defendant’s existing dwelling house. Regarding this, the first plaintiff asserted that the add-on structure contravened the Development Permission granted to the Defendant in 1993 for the construction of a single dwelling house with two bedrooms – a matter confirmed by the Planning Department in December 2018. It was his evidence that the add-on was an apartment complex with rental family units, and that in 2016, it was unfinished, with an uncompleted roof and no plastering.
12. It is the plaintiffs’ case that the defendant’s claim of adverse possession over the land and prescription is without any basis, there being no record that the defendant had ever asserted such a right, or had applied for title as under the Registered Land Ordinance. They contended that the defendant could not have applied for such title as he could not demonstrate that the construction the subject of the present complaint, had been on the land for the requisite twenty year period, or that he had been for that period, in peaceful and uninterrupted possession of the area of encroachment.
13. The defendant who describes himself as an Architect/Draughtsman, denies that he has trespassed on the plaintiffs’ land or that they should be entitled to the reliefs they seek in this suit. He asserts that the land he occupies was sold to him with dimensions pointed out to him by his vendor, and that he has built on the property, and occupied it peaceably without let or hindrance for more than twenty years.
14. The defendant admits that an extension to the original structure does indeed encroach on a bit of the plaintiffs’ land. He however contends that having occupied the land for over twenty years, he had acquired a right of prescription over that portion of the plaintiffs’ land.
15. Giving evidence on antecedent matters in relation to his construction on his land, the defendant testified that he bought the parcel of land described as Parcel 32 in 1993 from one Mr. Ed Hegner, now deceased. At that time, by reason of the available technology, what he could do to ascertain his boundaries was to enquire of his vendor who indicated his boundaries to him. In that same year, 1993, he submitted an application along with a set of plans, to the Planning Department for the erection of a rental home and a wash house building that contained a bathroom, open space in the closet, on a square footage of 228. The application was supported by the vendor Mr Hegner (although he had not finished paying the purchase price). Having received official approval, the site was cleared around January 1994, first by hand and then by machine for the construction of a dwelling house. The dwelling house was built in 1994, the first house to be built in that location. He averred that he had lived in it since its construction.
16. The defendant denied that he ever had an encounter with the first plaintiff, was advised by him of any encroachment, or had ever offered to resolve it by compensating him. He alleged that the first plaintiff was in fact his relation who visited his property when it was under construction, watched him build his property, and when the plaintiff acquired his own land, he (the defedant) signed off architectural documents for him for his property. He therefore alleged that the first plaintiff knew all about the dimensions of his land before he purchased it and therefore knew about the encroachment all along. In any event, he contended, as part of the negotiations to purchase his land, the first plaintiff ought as a prudent purchaser to have received a boundary marker certificate which would have shown him the extent of the land he was purchasing.
17. According to him, the first he knew of the plaintiffs claim was when he received an unsigned letter dated 19th December 2018, from the plaintiffs’ Attorneys alleging his encroachment of 0.05 acres, although a purported survey plan attached to that communication showed an alleged encroachment of 0.06 acres.
18. The letter he said, informed him of the encroachment and suggested payment for it without indicating any price at which it may be bought. He alleged that although he had no attorney, he responded to the letter the next day.
19. As aforesaid, the defendant admitted that his structure encroached on the plaintiff’s land, but contended that he had been on that land long enough to earn a prescriptive title. He also disputed the extent of the encroachment, alleging that “the perimeter of the encroachment, meaning the building footprint is only encroached by a third of the mutation”.
20. From the matters pleaded, the following stood as matters for the determination of the court.
- Whether or not the defendant has encroached of the plaintiffs’ land;
- Whether or not the plaintiff occupied his land including the encroached upon land for over twenty years.
- Whether or not the defendant has been in adverse possession or has acquired a right by prescription over the land.
- Whether or not the plaintiffs are entitled to their claim.
21. In this suit brought by the plaintiffs against an act of the defendant: his encroachment upon land included in Parcel No. 60707/32 with an approximate size of 0.42 acres, adjacent to the defendant’s land (registered as 60707/36), it is important for the plaintiffs to establish their ownership of the said land upon which the defendant has constructed a structure. The plaintiffs have done so. This land is registered land, and the fact of registration under the Registered Land Ordinance Cap 9.01 is conclusive evidence of the ownership of the said land, purchased by them in 2016 and registered without encumbrance. Indeed, even if the plaintiffs had not led evidence of ownership, it would not be fatal to their claim as the defendant does not deny it. The ownership of that parcel of land, is therefore not in issue.
22. Nor, is there any controversy over the fact that the defendant has constructed a structure on part of this land. The defendant admitted this also, and asserted in a bid to excuse his conduct, that possibly he did not know the proper limits of his property because in 1993 when he acquired his land (Parcel 36 which is adjacent to the plaintiffs’ Parcel 32), technology for the demarcation of boundaries was so rudimentary, that he had to ascertain his boundaries from his vendor.
23. His answer to the plaintiffs’ suit appears to be a twin defence of adverse possession, and a right to a prescriptive title. It is unclear whether they were to be alternative defences or simply a misapprehension of the difference between the two. Be that as it may, the said defences appear to be grounded on his allegation that he has occupied the land for about twenty years.
24. In his affidavit filed against the claim of the plaintiffs, the defendant deposed to the following matters: “I am the registered Proprietor of Parcel 60707/36, which the plaintiff alleges was encroached by me. It is my position that any encroachment as alleged has been removed by the operation of law and well before the plaintiff took title to Parcel 32. I have a right to claim rights by way of adverse possession under the Registered Land Ordinance… ”
25. I cannot help but commend learned counsel for the plaintiffs for his industry in expounding on the law of adverse possession. I cannot also help but agree that the Registered Land Ordinance does not seem to provide for title by adverse possession, and certainly not under section 135 of the Ordinance (RLO) relied on by the defendant in his defence. Section 135 though does provide for title by prescription which is acquired after the specified period of twenty years of use without the owner’s permission.
26. It is important to point out that learned counsel for the defendant limited himself to a defence of title by prescription, in his closing submissions, in apparent abandonment of his defence of having acquired title by adverse possession. For this reason, I will not concern myself with the case law on adverse possession cited for my persuasion, including JA Pye (Oxford) Ltd and Anor. V. Graham and Anor.  AC 419, decided on the United Kingdom’s Limitation Act of 1980.
27. Sections 135 and 136 of the RLO which deal with prescriptive title, require of an applicant for such title, a demonstration that he has occupied the land for a period of twenty years openly, and without consent of the true owner who should be in the position to interfere with such occupation, but does not.
28. Counsel for both parties have cited the Privy Council case of Arthur v The Attorney General of the Turks & Caicos Islands (Turks and Caicos Islands) (Rev 1) (JCPC 2011/0074)  UKPC 30 (16 August 2012) which inter alia, discussed the effect of registration of land under the Registered Land Ordinance Cap 9.01, in particular, whether the absolute title promised in section 23 subject to the overriding interests recognised in section 28, was further subject to a constructive trust arising from “knowing receipt” of trust property transferred in alleged breach of trust or of some other fiduciary duty.
29. While the plaintiff relies on the said authority to demonstrate that the plaintiffs’ registration of the land is not subject to any of the exceptions and has therefore conferred an absolute and indefeasible title on them (precluding any alleged right to title of the defendant), the defendant makes the argument that registration does not in this country (as in many countries purporting to adopt the Torrens system of land tenure), provide an absolute title that excludes other modes of land acquisition.
30. The defendant makes the case that he has been on the disputed land since 1993 (that is for more than twenty years), and that he has by section 135 of the RLO, acquired a right to a prescriptive title to the land although such is not noted on the Land Register. He submits that by section 28 (f) of the RLO, his right to the land must be recognised as an overriding interest and should operate as an encumbrance on the interest transferred to the plaintiffs upon their purchase of Parcel 32. The defendant additionally invokes the application of S. 17 of the Constitution of the Turks and Caicos Islands as dealing with his right over the disputed land.
31. First, I must set it straight that section 17 of the 2011 Constitution is not applicable to the present situation as it deals with deprivation of property in respect of one whose ownership is not in dispute. The present matter is a case founded on the tort of trespass to land, which is the unlawful interference with the possessory right of a person, to land.
32. I must also set straight this: that the encroachment complained of by the plaintiffs, is in respect of Parcel 60707/32, and not Parcel 60707/36, as stated by the defendant in his affidavit. 60707/32 is registered to the plaintiffs as joint proprietors. 60707/36 is the land acquired by the defendant from the late Mr. Hegner between 1993 and 1994, and on which in 1994, he put up an approved two-roomed dwelling house with laundry house.
33. On the assumption that I have not misapprehended the judgment of the Privy Council in Arthur, which is of course binding on this court, it seems to me that the Privy Council in making pronouncements about the Torrens system of registration in this country in their consideration of the matters raised by that appeal before them, should not be understood to be watering down the effect of registration in the light of section 23 (even recognising overriding interests in s 28) of the RLO. My reading of their Lordships’ view is that the Torrens system has been adopted with many variations in different countries, depending on local needs, and must not be read to be a blanket provision everywhere of an absolute and indefeasible title in every jurisdiction.
34. To establish the defence of a right to title by prescription, once the plaintiffs had established their registered title to the whole of the land comprised in Parcel 60707/32, it was the burden of the defendant who relied on such to establish on the preponderance of the probabilities, that he had occupied the area of land in dispute in an open manner, over an interrupted period of twenty years, and that the occupation was without the permission of the landowner although such owner must have known about it, but chose not to enforce his rights.
35. Section 135(1) of the Registered Land Ordinance Chapter 9:01 (RLO), provides as follows:
135(1) The ownership of land may be acquired by peaceable open and uninterrupted possession without the permission of any person wilfully entitled to such possession for a period of twenty years…
36. But the person who claims to have acquired ownership of land he occupies peaceably, openly, and without interruption for twenty years and seeks prescriptive title thereto, must apply to the Registrar of Lands for such registration in accordance with section 135 (2) which reads:
(2) any person who claims to have acquired the ownership of land by virtue of the provisions of subsection one of this section may apply to the Registrar for registration as proprietor thereof.
37. The registration of the “acquired” right which transforms it from a claim of a right to ownership to proprietorship is not a mere formality, for the Registrar to whom the application is made, must, in accordance with S. 137 of the Registered Land Ordinance, advertise the application for a period of one month before granting the application and effecting the registration. In the performance of this duty, the Registrar, “on being satisfied that the applicant has acquired the ownership of the land claimed, may allow the application and register him as proprietor of the land claimed, subject to any interests on the register which have not been extinguished by the possession”. Thus, a prescriptive title is acquired by registration, and not the mere fact of long, uninterrupted use of land belonging to an acquiescing owner.
38. In the enterprise of establishing this alleged right to a prescriptive title, the defendant has recounted that after he received permission to clear the land and to build on land he purchased in 1993, he put up a dwelling house in 1994. He alleges that he built this dwelling house in the sight of the first plaintiff who is known to him, and used to visit with him while his house was under construction. He also avers that having been on the land for over twenty years, his presence must have been known to prior owners and that the plaintiffs should have notice of his occupation of the area of encroachment.
39. It seems to me however that the defendant’s arguments are misconceived, and the defence he presents, untenable for the following reasons:
40. There is no controversy over the fact that sometime in 1993, the defendant purchased the land registered as No. 60707/36, and in 1994, constructed thereat, a dwelling house. The documentary evidence establishes this, although registered title to that land was not acquired by the defendant until 2000. The evidence is that in 1993, and long before he finished paying for the land, the vendor of the land, a Mr Hegner, supported the defendant’s application to the Department of Planning for a Detailed Development Plan. The application was approved in 1993, along with a building plan and an approval to clear the land for development. The document marked NRO7 indicates official approval of works done in furtherance of the construction. All these happened between 1993 and 1994.
41. Having led evidence on these matters, the defendant has failed to demonstrate that the structure built on the encroached portion of the plaintiffs’ land which has been described as an add-on without challenge, has been on the land for the twenty-year period (prerequisite for a prescriptive title). In this regard, were the structure built by the defendant a single construction, the assumption would be that the foundational structure had been placed on the land in 1993 when construction of the two-roomed dwelling house was made. It is not so in this case in which the first plaintiff avers (and the defendant has not denied), that the structure complained of as encroaching on the plaintiffs’ land, is an add-on, recently constructed, and yet uncompleted in 2017. This was when the surveyor who was commissioned by the plaintiffs to identify and place boundary markers on their land, indicated that there was an encroachment on the plaintiffs’ land.
42. But how long ago that add-on structure had been constructed, was the question the defendant declined to answer, and rather erroneously apparently placed the burden of proving the age on the first plaintiff as registered owner of the land even though he admits that the block of apartments constructed on the portion originally intended for a laundry house was not part of the dwelling house, approved and built in 1994.
43. It is this structure the first plaintiff asserts, is an add-on to the original dwelling house which was built in 1994, and that as late as around 2016-2017, this add-on was not a completed structure. In the face of this evidence by the plaintiff of the recent act of encroachment onto his land by the defendant, the defendant who has built his defence on the construction of his dwelling house in 1994, has made no attempt to date that add-on structure, a matter that would be sure to settle whether or not the twenty year right to prescriptive title he touted, had been attained.
44. The defendant’s alleged defence is unsupported by the evidence on the ground which is that the structure that encroaches on the plaintiffs’ land was not part of the original construction of 1994. That was a two-bedroom dwelling house. The defendant has admitted that he has used up land belonging to the plaintiffs for the construction of his add-on structure. He has raised the defence of a right to a prescriptive title, but has led evidence only in respect of the development of land he has rightfully owned since 1993, and not the land on which he has constructed the add-on, the encroachment. I reiterate that the area of encroachment is the land in dispute, not the whole of Parcel 36 on which the defendant has constructed his two-bedroom dwelling house since 1994.
45. Section 28(f) of the RLO which recognises unregistered overriding interests such as the right to prescription provided for in S. 135 of the RLO, does not, by reason of matters aforesaid, avail the defendant who has not demonstrated the requisite statutory twenty-year presence on the area of encroachment which is included in the land registered as Parcel 60707/32, owned by the plaintiffs.
46. This is the heart of the matter: the defendant who purchased Parcel 60707/36 to put up a two-roomed dwelling house, did so within his rights and within the law, until sometime after that construction (it is not clear when, as no evidence has been led by the defendant on the age), he took a little more land contiguous to his, to construct an add-on structure: an apartment block. That the new structure was constructed much later, and did not have the approval of the relevant authority in 1993, is evidenced by a notation made on the Detailed Development Permission granted to the defendant on the 8th of December 1993, that it did not “include the future apartment building” which required a discrete application (my emphasis).
47. In my view, that the structure of the defendant may not have been lawfully constructed, not having received the requisite approval, would not have aided the case of the plaintiffs, except that the structure, unlike the dwelling house that was constructed in 1994, was by virtue of being an add-on to the two-roomed dwelling house, more probably than not, constructed later than the original 1994 building, on land registered to the plaintiffs. On the evidence, the dwelling house built in 1994 on land acquired in 1993, was severable from the offending apartment building structure which has been described as an add-on, and is on land registered to the plaintiffs.
48. In the circumstance, it seems to me that the defendant must be held to have encroached on land registered to the plaintiffs, and that while his original dwelling house constructed in 1994 has been there for more than twenty years, the add-on structure which encroaches on the plaintiffs’ land has not attained the twenty year existence as would entitle the defendant to a right of prescription under section 135(1) of the RLO over the area of encroachment, and thereby, become a recognised encumbrance on the plaintiffs’ registered title.
49. The encroachment of the defendant onto the land registered to the plaintiffs as 60707/32 must therefore be held to be a trespass - an unlawful interference with the plaintiffs’ possession of the land registered to them as 60707/32 onto the land of the plaintiffs, not excused by a right of prescription, and therefore unlawful.
EXTENT OF ENCROACHMENT
50. While the defendant does not deny his encroachment on the plaintiffs’ parcel, he makes much ado about the extent of encroachment. Admittedly, the plaintiffs were, before they sought redress, remiss in their duty to properly describe the dimensions of the land encroached upon. This is because while the first plaintiff relied on a survey plan he commissioned in 2018 to assert that the encroachment was 0.06 acres, he had, communicated to the defendant per his attorneys in a letter before action, that the area encroached upon was half an acre (0.5 acres).
51. The defendant protests with some vehemence that neither of these represent the true state of affairs, as he contends that the area of encroachment is no more than one third of what the survey plan indicated.
52. The importance of the extent of encroachment arises from the main relief sought by the plaintiffs in this suit, which is: for the court to order the pulling down of the structure which encroaches on the plaintiffs’ land.
53. By reason of the defendant’s challenge of the dimensions of the land encroached upon, the proper manner of resolving the controversy should have involved a determination of the area of encroachment. That would have called for a determination of the parties’ boundaries.
54. Surprisingly, the defendant’s reaction to a letter written by counsel for the plaintiffs to the Registrar of Lands regarding the determination of the parties’ boundaries, was to assert that he was not engaged in a boundary dispute. The plaintiffs so advised, therefore conducted their case without recourse to a determination of the boundaries.
55. Having asserted that he was not interested in the determination of boundaries which the plaintiffs intimated, was perhaps necessary to ascertain in order to determine the proper dimensions of the encroachment, it seems to me that it cannot now lie in the defendant’s mouth to deny the accuracy of the survey plan which showed the area of the encroachment to be 0.06 acres.
56. The said dimension which is stated in the survey plan upon which the plaintiffs base their case, will therefore be accepted as the area of encroachment.
57. Having found that the defendant has trespassed onto the land of the plaintiffs described as Block 7, Parcel 32, Cheshire Hall & Richmond Hill, and registered in the Land Register as 60707/32, to the extent of 0.06 acres, I enter judgment for the plaintiffs, and go ahead to grant the reliefs sought by the originating summons, being:
1. An order that the Defendant do forthwith pull down and remove that portion of a building built by the Defendant, his employees or agents on the Plaintiffs land at Block 7, Parcel 32, Cheshire Hall & Richmond Hill to the extent of 0.06 acres.
2. Damages for trespass to be assessed following the pulling down of the structure;
3. Interest on such damages assessed, and
4. Costs of suit.
Mabel M. Agyemang