Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 130 of 2014

Gilbert Selver v. The Attorney General (CL 130 of 2014) [2022] TCASC 6 (29 April 2022);

Media neutral citation
[2022] TCASC 6
Case summary:

The Plaintiff claimed that pursuant to the then current crown land policy, he made two applications for crown land in 1999, one for the freehold title to Parcel 60602/133 “Kew Town”, Providenciales, and a second for a conditional purchase lease (CPL) of Parcel 60602/130 “Kew Town”, Providenciales. He alleged that in both cases the Defendant unilaterally, and in breach of contract, changed the terms upon which the lands were first offered and accepted, and he sought declarations, damages, interest, and costs. The Defendant defended and counterclaimed. They contended that the Plaintiff was a trespasser. That he wrongly entered and remained in occupation of the Parcels of land in issue without having secured the requisite leases; and they counterclaimed for possession and damages, and an order for pulling down and removal, interest, and costs.

Headnote and holding:

The Court was not persuaded as argued by counsel for the Defendant that the Plaintiff entered on and remained in occupation of the Parcels unlawfully. Given the applications and correspondence between the parties and given the visits to and inspections of the properties by its agents, the Defendant was aware of the Plaintiff’s occupation. The Court noted that in any event any unlawful entry must have been waived by the Defendant. The Court ordered the freehold to the properties be transferred to the Plaintiff for the prices of $30,800.00 and $73,500.00 respectively together with the survey and registration fees. It followed that the relief claimed by the Defendant on its counterclaim was refused.

Coram
Simons QC, J

 

 

 

 

IN THE SUPREME COURT                                                                             ACTION NO. CL-130/2014

TURKS AND CAICOS ISLANDS

 

BETWEEN:

GILBERT SELVER

Plaintiff

v.

THE ATTORNEY GENERAL

Defendant

 

 

___________________

JUDGMENT

____________________

 

Before:                                               The Hon. Mr. Justice Carlos W. Simons OBE QC

Appearances:                                 Mr. George C. Missick of Geordins for the Plaintiff

                                                                Ms Clemar Hippolyte for the Attorney General’s Chambers

 

Trial Dates:                                     7th, 8th and 15th March 2022.

 

Venue:                                                Court No. 5, Graceway House, Providenciales

 

Date to be Delivered:                29 April 2022 at 4:00pm

Parties

  1. The Plaintiff is a Turks and Caicos Islander and businessman residing in Providenciales.

 

  1. The Defendant is the Government of The Turks and Caicos Islands sued pursuant to Section 13 of the Crown Proceedings Ordinance (Cap.4.11). The Defendant will be referred to hereafter in this Judgment as TCIG.

The Claim, and the Defence and Counterclaim

  1. The Plaintiff claims that pursuant to the then current crown land policy, he made two applications for crown land in 1999, one for the freehold title to Parcel 60602/133 “Kew Town”, Providenciales, and a second for a conditional purchase lease (CPL) of Parcel 60602/130 “Kew Town”, Providenciales. He alleges that in both cases TCIG unilaterally, and in breach of contract, changed the terms upon which the lands were first offered and accepted, and he prays declarations, damages, interest, and costs.

 

  1. It should be noted that the proper Land Registry Section reference in each case is Norway & Five Cays, not “Kew Town”, and that is how the lands will be referred to throughout the remainder of this Judgment. It might also be mentioned at this stage that both Parcel numbers changed successively over time due to Land Registry management requirements, ending up as Parcels 60602/430 and 60602/429 in 2010 and 2008 respectively (Statement of Claim, Paragraphs 1 to 4).

 

  1.  In relation to Parcel 60602/133, the Plaintiff says that TCIG agreed to grant freehold title upon payment of $8,900.00, grant of planning permission for the construction of a dwelling house within the confines of the Parcel boundaries and production of a Parcel boundary survey by the TCIG Survey Department, all of which he pleads were complied with (Statement of Claim, Paragraph 5 and 6).

 

  1. On February 4, 2003, TCIG offered the Plaintiff a commercial CPL of Parcel 60602/130 for the purpose of constructing apartments on terms that the lease be executed within six months of the date of the offer letter; annual rent payments of $335.00 would apply; a freehold purchase price of $6,700.00 would be payable upon completion, and that secured by a legal charge in the same amount; and payment of survey and registration fees of $360.00. In addition, he asserts there were implied terms that TCIG would produce the lease for execution as it was offered on their terms, and that TCIG would not impede the Plaintiff’s efforts to complete the apartments. The Plaintiff accepted the offer and on 13 February 2003 he tendered payment of the freehold title purchase price, and the rent and survey and registration fees (Paragraphs 7 and 8 of the Statement of Claim).

 

  1. There followed a series of what are referred to in the Statement of Claim as “boundary difficulties” that essentially involved building encroachments on neighboring Parcels by both the Plaintiff and one of his neighbors. To remedy these encroachments, it appears the affected Parcels had resurveyed and mutated to adjust boundary lines to reflect on the ground reality. In relation to Parcel 60602/133 the encroachment was into Parcel 60602/325 and the Plaintiff applied by letter and formal application in February and September 2002 respectively for the land he had encroached upon “inadvertently” – he says was not his fault but the Planning Department’s, for showing him the wrong boundary lines (Paragraphs 9 and 10 of the Statement of Claim).

 

  1. In relation to Parcel 60602/130 upon which the neighboring landowner had encroached, TCIG had the land resurveyed and mutated with the result that Parcel 60602/130 became Parcel 60602/429. This Parcel was smaller than Parcel 60602/130 because the Plaintiff was required to surrender to his neighbor the land his neighbor had encroached upon (Paragraph 11 of the Statement of Claim).

 

  1. At Paragraphs 12 to 14 of the Statement of Claim the Plaintiff relates how upon applying to TCIG for freehold title to the land that he had encroached upon from Parcel 60602/133 (that land now being designated Parcel 60602/392), TCIG offered the land at a freehold purchase price of $73,500.00 and without the 25% Belonger discount. This response to the Plaintiff’s application came in January 2007, more than four years after the Plaintiff made the formal application in September 2002. Further, TCIG he says by letter dated 29 October 2008 rescinded its 2001 decision to grant him freehold title to Parcel 60602/392 (formerly Parcel 60602/130) at the previously quoted price of $8,900/00 and now demanded payment of $73,500.00, plus additional land survey and registration fees of $850.00. These unilateral changes he says amounted to a breach of contract.

 

  1. At Paragraphs 15 to 19 of the Statement of Claim the Plaintiff complains of a similar unilateral price hike in relation to Parcel 60602/130 (now Parcel 60602/392 since the necessary mutation) – $30,800.00 instead of $6,750.00 as originally offered. This too he says constituted a breach of contract, and at Paragraphs 20 to 22 he asserts his willingness to perform his original obligations under the contracts and asserts the alleged breaches by TCIG and gives particulars of loss and damage suffered and then prays declarations, special damages specific performance, interest, and indemnity costs.

 

  1. TCIG defends and counterclaims. They contend that the Plaintiff is a trespasser. That he wrongly entered and remains in occupation of the Parcels of land in issue without having secured the requisite leases; and they counterclaim for possession and damages, and an order for pulling down and removal, interest, and costs.

 

  1. In addition to all the relevant material, including written submissions, counsel have provided the Court with an agreed list of issues to which I shall turn presently. But first, a summary of the facts.

The Claim in respect of Parcel 60602/429 (previously Parcel 60602/130)

  1. There have been several changes to the Parcel numbering of the Parcels the subjects of this dispute, so for the purposes of this judgment I will rely on the numbering given by Mrs. Tatum Clerveaux, Commissioner of Lands who gave evidence on behalf of TCIG. She told the Court that:
  1. the original Parcel 60602/130 is now Parcel 60602/429
  2. the original Parcel 60602/133 remains Parcel 60602/133
  3. the original Parcel 60602/325 became Parcel 60602/392 but, following mutation is now Parcels 60602/430 and 60602/431
  4. Parcel 60602/431 is the land over which the easement is being claimed.

 

In any case nothing much turns on the Parcel numbering as it is the statute law and common law application of principles that will decide the issues as they arise. As regards Parcel 429 the allegation at Paragraph 15 of the Statement of Claim is that TCIG has unilaterally increased the purchase price from $6,700.00 to $30,800.00. The first question is, is that a fair and accurate representation of what took place?

 

  1. The evidence is that in or about the year 2000 (but maybe as early as 1998) the Plaintiff made application to TCIG for a CPL of Parcel 60602/133. TCIG says that the Plaintiff, without formally taking up the offer of the CPL proceeded into occupation of what he “thought to have been Parcel 607602/133” and commenced development without the benefit of the lease.

The Claim in respect of Parcel 60602/430 (previously Parcel 60602/325)

  1. In or about 2001 the Plaintiff made a second application for a residential CPL over Parcel 60602/325 (now Parcel 60602/430) on which he had commenced construction that was originally intended to be on Parcel 60602/133. The application was made solely in relation to the area encroached upon and not the entire Parcel. Following internal discussions, reviews, and surveys within the Ministry of Natural Resources to resolve the problem a letter dated 4th February 2003 was sent to the Plaintiff confirming the grant of a commercial CPL over Parcel 60602/130. The offer was accepted by the Plaintiff on February 13, 2003. However, no lease was executed and TCIG says no payments were ever made. The Plaintiff says he tendered payments but is unable now to locate his receipts due to the passage of time.

The Claim for an Easement over Parcel 60602/431

  1. The Plaintiff says he is entitled to an easement over Parcel 60602/431 based on representations made to him by TCIG and to gain access to other adjacent Parcels of land. Presumably these representations would include the latter from the Department of Planning dated 10 February 2000 at Tab 1 of the Plaintiff’s Trial Bundle.

Agreed Statement of Issues and Resolution

  1. Counsel have agreed a list of issues around which they have built their submissions. I shall examine those and decide each in turn.

 

  1. The first is whether the Plaintiff wrongfully entered on and remained in occupation of Parcels 60602/429, 430 and 431 without lawful authority and without having secured the requisite lease. I am not persuaded as argued by counsel for TCIG that the Plaintiff entered on and remained in occupation of the Parcels unlawfully. Given the applications and correspondence between the parties and given the visits to and inspections of the properties by its agents, TCIG were aware of the Plaintiff’s occupation. In any event any unlawful entry must have been waived by TCIG in the way contended for by counsel for the Plaintiff at Paragraph 28 of his closing submissions.

 

  1. Secondly, whether the offers made to the Plaintiff for conditional purchase leases on Parcels 429 and 430 have expired. The answer here I believe is no, those offers have not expired because they were never formally withdrawn by TCIG, and the Plaintiff’s conduct demonstrated that he considered the offers to have remained open and available to him. On the authority of Attorney General v. M & A Services Ltd. [CL-155/2013] TCACA 3, 2015, I find that the agreement was not terminated by any delay in payment in the absence of service of any notice of termination or notice to complete, time not having been expressed to be of the essence.

 

  1. The third agreed issue in the list is whether the letter from TCIG dated October 29, 2008, relaying Cabinet’s decision at its meeting on October 8, 2008, created a contract between the parties making the Plaintiff a purchaser in possession and entitling him to have Parcels 60602/429 and 60602/430 transferred to him on the conditions that he pays the freehold purchase prices of $30,800.00 and $73,500.00 or such other sum. Again, applying the principles in Attorney General v. M & A Services Ltd. I find that it did, and I do not accept that the differences mentioned by counsel for TCIG in her written submissions at Paragraphs 69 to 71 are sufficiently material to distinguish that case from the one in hand. I accept rather the discussion of the matter to be found at Paragraphs 39 to 57 of the written submissions of counsel for the Plaintiff.

 

  1. Fourthly, if it is found that a contract was created, was the said contract discharged. In holding that the contract remains on foot, I again accept the analysis given by counsel for the Plaintiff at Paragraphs 58 to 67 of his submissions. I further hold that applying the decision of the Court of Appeal in CMK BWI Ltd. v. Attorney General CL-AP16/18, the provisions of the Crown Land Ordinance cannot be applied retrospectively to deprive the Plaintiff of his contractual rights.

 

  1. The fifth issue the parties identified is whether the Plaintiff should be granted an easement over Parcel 60602/431. On this point I hold with counsel for TCIG that the Plaintiff is not entitled to an easement over Parcel 60602/431 for the reasons stated at Paragraphs 72 and 73 of her written submissions, namely that TCIG never acquiesced in the building of the road and that the proposed easement has been designated an open space and has been earmarked as a buffer between the residential and commercial developments in block 60602 and the airport reserve. The Plaintiff may apply for an easement in the manner suggested by his counsel at Paragraphs 70 and 71 of his written submissions.

 

  1. The sixth and final agreed issue is whether TCIG is entitled to possession of the properties. Given what I have said in the preceding Paragraphs and given the expenditure that the Plaintiff has outlaid on the properties as mentioned by his counsel at Paragraph 73 of his written submissions, which I accept, I hold that TCIG is not entitled to possession of the properties.

Decision

  1. Turning now to the respective prayers for relief, and taking the Plaintiff’s first I order as follows:
  1. That the freehold to the properties be transferred to the Plaintiff for the prices of $30,800.00 and $73,500.00 respectively together with the survey and registration fees as detailed in the letter to the Plaintiff dated 29 October 2008. These are the prices the plaintiff’s counsel says at paragraph 60 of his closing submissions that the plaintiff is ready and willing to pay and has indeed tried to pay. These prices also hark back to the finding I make at paragraph 20 above as to contract relations having been created.
  2. The declaration as regards the easement is denied.
  3. Special damages are denied as not having been particularized nor proved, as are damages for breach of contract, and interest.
  4. It follows that the relief claimed by TCIG’s on its counterclaim is refused.

Costs

25. The Plaintiff shall have his costs of the action on the standard basis to be taxed if not agreed.

 

 

 

The Hon. Mr. Justice Carlos W. Simons OBE QC

29 April 2022