Lettsome v Lettsome
| Jurisdiction | British Virgin Islands |
| Judge | Moore H.C.J. |
| Judgment Date | 14 March 1997 |
| Neutral Citation | VG 1997 HC 10 |
| Docket Number | No. 39 of 1994 |
| Court | High Court (British Virgin Islands) |
| Date | 14 March 1997 |
High Court
Moore, J.
No. 39 of 1994
Jack Husbands and Astra Penn for the plaintiff
Sydney Bennett and Anthony Johnson for the defendant
Real property - Possession — Claim by plaintiff to possession of certain lands occupied by the defendant — Defendant claimed to have been in exclusive possession of the disputed land since 1972 — Whether the defendant had been in possession of the disputed land and had acquired title by such open, peaceful and uninterrupted possession for over twenty years — Whether the plaintiff's cause of action had been barred having regard to the provisions of section 6(3) of the Limitation Act, Cap. 43, which precluded him from bringing the action to recover possession after the passage of 12 years — Court found that the defendant did not have exclusive possession of the land and gave judgment in favour of the plaintiff.
The plaintiff and the defendant are half-brothers. Their father was Ronald Lettsome (hereinafter Ronald) who died in 1986. The plaintiff is the son born out of wedlock whereas the defendant is the son of Ronald Lettsome's wife. Their paternal uncle was Sinclair Lettsome (hereinafter Sinclair) who died on the 1 7th July, 1983.
By Deed No. 420 of 1967, Sinclair Lettsome became seized in fee simple in possession of “ALL THAT certain piece or parcel of land situated at Hodge's Creek, Fat Hogs Bay, Tortola, British Virgin Islands, containing by admeasurement one point seven five (1.75) acres and butted and bound as follows:
On the East by a public road leading from Road Town to East End
On the West by lands of Michael Biddle
On the North by lands of Henry O'Neal
On the South by lands of Ronald Lettsome”
The plaintiff who grew up in Tortola started going to St. Thomas in 1961 or 1962 and took up residence in that neighbouring island in the late sixties or early seventies. It is not without significance that the defendant claims to have first started using the disputed property in 1969 or thereabout to coincide with the plaintiff's commencement of residence in St. Thomas. In answer to a patently leading question in his examination in chief, the defendant contends that “from ‘72 onward, (he) got fully in control, completely.” However, later in his testimony in chief he says “since ‘78 I get fully, but from ‘69, ‘70 I start.”
But this excerpt from the cross-examination of the defendant by Mr. Husbands reveals what I believe to be the truth of the matter which is that the defendant never took control of the disputed land but simply used it as a rubbish dump and for other purposes.
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Q. You were not in control of all this land? Your were not in control of the whole of parcel 9?
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A. Well, I wasn't in control, just using it.
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Q. You were using it?
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A. I was using it.
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Q. You were never in control of it?
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A. I was in control because I was using it. I didn't have no claim, but I was just using.
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Q. You were not in control, you were using it?
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A. I was using it.
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Q. Your father was in control? After Sinclair died, your father was in control?
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A. I was in control by carrying it (the rent) to him as a respect that is my father.
It is true that in the above extract the defendant says both that he “wasn't in control, just using it” and that he “was in control” because “he was using it”. But this is typical of the vacillation and evasiveness which so completely permeated his testimony.
Furthermore, such control as he allegedly had was a qualified control since it was for the purpose of presumably collecting the rent for one or both of the houses on the land and carrying it to his father. This period when, according to him, he was in essence in control on his father's behalf, related to the period between the death of Sinclair in 1983 and the death of his father in 1986. My finding that whatever acts he may have done in relation to the land in the period between the death of Sinclair in 1983 and the death of his father in 1986 were done on his father's behalf, is reinforced by his admission that he knew that his father thought himself to be the successor in title to Sinclair and that he (the defendant) was actively assisting his father to succeed to the title of Sinclair by taking his father to the lawyers (who are the defendant's lawyers in this suit) for that very purpose.
The plaintiff acquired title to the disputed land described as parcel 99 of Block 3438B of the Long Look Registration Section on the 14th May, 1972 from his uncle, Sinclair Lettsome. 1972 was the year when, conveniently, the defendant claims he got fully in control. Under Conveyance No. 257 of 1972, in exchange for valuable consideration, Sinclair Lettsome conveyed a Life Interest to himself with remainder to the plaintiff who became absolutely entitled upon the death of the Settlor in July 1983.
Lot 99 is very gently sloping land. In Tortolian terms, it may even be described as flat. It faces on to Blackburne Highway the main road linking the capital with the airport on Beef Island and with the rapidly expanding East End residential and commercial area. It is bounded on its northern side by a road which abuts the main road in a ‘T’ junction. This makes it a corner site. Except for the rather ramshackle, aesthetically unappealing and untidy property owned by the defendant at Lot 48, which also faces the main road and a minor road to the south of it, there are several gracious and well maintained homes in the block of which Lot 99 forms a part. On the opposite side of the road to Lot 99, though some way in from the Blackburne Highway, is fine residential property which is beautifully landscaped and luxuriously developed.
The disputed land is therefore prime residential property eminently suited for the plaintiff s intended use of it in building his home there. All that he need do is to clear the rubble which the defendant has dumped there. But it is also the kind of property which, as has been shown in so many cases which have reached the courts, attracts the grasping and avaricious gaze of covetous eyes. I make the findings concerning the physical characteristics of the disputed land and surrounding areas both from the evidence adduced at the trial and as a result of a visit to the property which the court made by consent of and in the presence of the parties and their attorneys. No activity of any kind appeared to have taken place recently on the land.
On the 6th June, 1984, about a year after Sinclair Lettsome's death, the father of the parties, Ronald Lettsome applied under Section 132(I) of the Registered Land Ordinance, 1970 for a restriction preventing any fraud or improper dealings with the disputed land until further order. This action was ostensibly motivated by the alleged failure of the plaintiff to perform his obligations under the Deed of Conveyance from Samuel Lettsome to him and by the unsubstantiated and baseless fear of Ronald Lettsome that his son, the plaintiff, would sell the land in breach of the terms of the said Conveyance.
Pursuant to this application, on 10th August 1984, a restriction recorded as Instrument No. 741/1984 was placed on the Land Register relating to the said land on behalf of Mr. Ronald Lettsome. Again, it is not without significance that the defendant, in his own words, was driving his father to the lawyers who are representing him in this suit “to make a moving on it”. By “it”, he was referring to the disputed land, and it is difficult to escape the feeling that the defendant himself played some sinister part in having the restriction placed upon the land by his father.
In any event, it is inconceivable that if, as he claims in his defence, the defendant had been “in exclusive occupation and possession” of Lot 99 since 1972, intending thereby to exclude all others from the disputed land, he would in 1984 be driving his father to the lawyer who represented them both “to make a moving on it” full well knowing that his father was trying to become the legal successor in title to Sinclair Lettsome who died in 1983. The defendant also admitted that even though he knew that his father was trying to get letters of Administration to take over the disputed land after Sinclair's death, he (the defendant) did not object or say anything about it.
The plaintiff protested to the Registrar of Lands about the restriction. He produced evidence of payments to the Virgin Islands National Bank showing that by 1976 he had fully discharged his obligations under Deed of Conveyance No. 257 of 1978. The Restriction was accordingly duly removed by the Registrar of Lands by Instrument No.419/1993 dated 23rd March, 1993, but not before the plaintiff himself and eventually his solicitors had made several fruitless representations to the Registrar of Lands. The restriction, says the plaintiff, prevented him from doing something with the place. He was also prevented from doing so by the refusal of the defendant to remove the debris which the latter had placed upon the land. It was the plaintiff's intention to build a home on the land. In the event, he was frustrated by the restriction for well over 8 years.
The disputed land is shown as Lot 99 on a plan of Hodge's Creek (north) and Fat Hog's Bay (south) marked Exhibit A. It is roughly rectangular in shape save that there are two relatively small lots numbered 42 and 98 at what would be the North Western corner of the rectangle. Significantly, Lot 99 is bordered in part to the south by Lot 48 which is the property of the defendant. It is from that footing of Lot 48 that the defendant claims that he began to spread himself like an amoeba encroaching like a creeping menace until he had completely ingested the totality of the plaintiff's land.
Both the plaintiff and the defendant have described the area of which the disputed land forms part as being Lettsome land or family...
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