Olivia Donovan-Carty Caroline Donovan Claimants v Rosalie Donovan Renardis Donovan Defendants
| Jurisdiction | British Virgin Islands |
| Judge | FOSTER, J. (Ag) |
| Judgment Date | 20 April 2009 |
| Neutral Citation | VG 2009 HC 5,[2009] ECSC J0420-3 |
| Docket Number | CLAIM NO. BVIHCV 2006/0316 |
| Court | High Court (British Virgin Islands) |
| Date | 20 April 2009 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. BVIHCV 2006/0316
Mr. Lewis Hunte QC and Ms. Kelly-Ann Payne of Lewis Hunte & Co for the Claimants
Ms. Asha Johnson of Samuels Richardson & Co for the Defendants
(Land Law - whether evidence adduced at trial sufficient to support finding that the Defendants were in peaceable, open and uninterrupted possession of land without permission of any person for 20 years or more - whether defendants should vacate the land - whether defendants should remove structures and debris from land - whether Limitation Act applies - Registered Land Act sections 135 and 136)
On the 28 th December 2006, the Claimants filed a Fixed Date Claim against the Defendants for an order that they vacate a parcel of land registered as Parcel 67 Block 2336B in the Mount Sage Registration Section ("the Land") and to deliver up possession thereon or alternatively an injunction requiring them to pull up any structures thereon and remove all debris from the Land.
The Land is situate in the Carrot Bay area of Tortola, is generally flat and has ocean frontage. The land was registered in the names of Olivia Donovan-Carty and Caroline Carty ("the Claimants") on 16 th August 2006 as the personal representatives of Samuel S. Donovan, deceased. The first registration of the Land was on 25 th September 1974 in the name of the "Heirs of Samuel Donovan". Samuel Donovan was the father of the Claimants and the grandfather of the Second Defendant.
In their defence, the Defendants claim that they have been in possession of the Land since 1986 to the present time and as such have counterclaimed, claiming a declaration under Section 135 (1) of the Registered Land Act (Cap 229) that they are entitled to have prescribed ownership of the Land and are therefore entitled to possessory title thereof as they have been in possession of the Land for more than 20 years prior to the commencement of these proceedings. They also claim to have had undisturbed possession of the Land to the exclusion of the Claimants and that they have exercised acts of ownership over the Land. The Defendants further claim to have operated a fruit stand on the Land and in so doing procured the connection of water and electricity to the premises erected on the Land and then applied for and obtained a trade license to operate the business.
The trial of this matter took one day, the Claimants and Defendants calling 3 witnesses each.
The Second Defendant at paragraphs 2, 3 and 4 of his Supplemental Affidavit (which was tendered in this case as his evidence in chief) states: -
(2) "in or around 1986, my father and uncle gave me permission to occupy Parcel 67, Block 2336B, Mount Sage Registration Section, the said property in dispute".
(3) In or around late 1990 or early 2000, an oral agreement was made between my three (3) aunts, Amanda Donovan, now deceased, and the First and Second Named Claimants and I. The essence of our agreement was that if I gave up my claim to Parcel 63 where I have my house, they would give me full possession and control of Parcel 67.
(4) I had started doing business on Parcel 67 since 1986. As such, I agree to give up one of the Parcels, that is Parcel 63, and I kept Parcel 67".
That was the extent of the Second Defendant's written evidence in chief.
At the trial of this matter the Second Defendant amplified his written testimony and gave evidence that he used the Land for selling fruit, vegetables, drinks and to cook. He also stated that he did not seek permission to occupy the Land from the Claimants.
The Defendants applied for and obtained permission from the relevant bodies to connect electricity and water to the premises on the Land. They produced receipts showing the payment of these respective charges over a period of time. I will revert to these time periods later on. In essence, the Defendants had erected a structure on the Land selling fruit therefrom and in or around 30 November 2004 applied for and obtained approval from the Building Authority on the 16 December 2004 to erect a new building on the Land. The Second Defendant testified that he did not seek permission from the Claimants to construct a concrete building on the Land but that he sought permission which was granted from the Building Authority.
It is noted that the permission granted by the Building Authority was to erect a new building and was not to reconstruct add or alter a building or to remove a building. The Defendants commenced building a wall structure on the Land thereafter. The Claimants noticed this construction in progress and by letter dated 14 July 2005 to the Town & Country Planner, identified themselves as the remaining heirs of Samuel Donovan stating: - "We have been informed that a building plan submitted to your Department by one Rose Donovan was approved for the construction of the said building, and since we have not given neither Rose Donovan nor your Department permission for the erection of the said building, we are by this letter asking that you take immediate steps to inform Rose Donovan to discontinue such construction on the abovementioned property until further notice." On the 22 July 2005 a Notice to Quit was hand delivered to the Defendants at Carrot Bay. Further, on the 28 July 2005 the Chief Town and Country Planner caused a Compliance Notice to be served on the First Defendant asking that she cease operations on the Land.
In cross-examination by Learned Queen's Counsel Lewis Hunte, the Second Defendant testified that his written evidence was true. He agreed that he had not produced any tax receipts in respect of parcel 67. He agreed that up to 2007 he was still saying that his aunt had given him permission to be on the Land. Importantly he further testified that that there are about 4 other structures on the Land, that they belong to 'family' and that persons other than himself occupy the Land. He agreed that his occupation is not exclusive.
In relation to his cross-examination on whether or not he received a "Stop Notice" from the Building Authority, the Second Defendant testified that he could not remember. I would reasonably assume that the "Stop Notice" referred to was the Compliance Notice I earlier mentioned that was served on his wife, the First Defendant.
On observing this witness and his demeanour he was hesitant when asked probing questions concerning the "Stop Notice". I determined that in relation to this aspect of the evidence he was not entirely truthful to the court. He tried to hide behind his apparent inability to read to feign a lack of knowledge concerning the "Stop Notice". I believe he knew of the "Stop Notice" and was therefore fully aware of the attendant consequences of its disregard. His wife, the First Defendant with whom he lives is fully literate and was fully aware of the "Stop Notice" and its consequences and I so find.
The First Defendant gave evidence in this matter by way of affidavit. She testified that her husband, the Second Defendant and her constructed a wooden structure on the Land and sold fruit produce and drinks. In July 1988 her husband, signed an agreement "as owner" of the Land for the supply of water to it. The court has had regard to Exhibit RD 1 ( agreement for water supply from government mains) and noted that the application had a space for the entry of the owner of the Land. It read "Name of Owner of Property" and in the space next to that entry, the words written in were "Renardis Donovan". In the next line there is a space for the entry of the applicant which reads "Name of Applicant" and next to this the hand written words "Renardis Donovan" was entered. There was therefore an expectation that the name of the applicant and the name of the owner could be different. There was no suggestion that Renardis Donovan was the "owner" of the Land at the time. The Defendants have now applied to the court, to be declared the prescriptive owners of the Land.
The Registered Land Act mandates that they would have to establish possession of the Land for 20 years. However, the evidence of the Second Defendant claiming to be the owner of the property in his application to the water authorities was tendered to establish the Defendants occupation of the property in 1988.
The Defendants produced a Trade Licence dated the 13 April 1989, again to establish their occupation of the Land in 1989. It was also produced to prove the type of occupation by the Defendants of the Land and I so accept. The first Defendant stated that they (her husband and herself) did not pay rent for their occupation of the Land. She also testified in cross examination that they had received the Compliance Notice from the Town and Country Planning Department and that they continued to build "in spite of the Stop Notice" and that she had shown it to her husband, the Second Defendant. She testified that they had appealed the decision to cease all operations on the Land. This does not however authorize or entitle the Defendants to disregard the notice and continue building.
Orien Donovan gave evidence on behalf of the Defendants. Orien testified that he has known the Defendants for over twenty years and that the Defendants have "occupied the property since the 80's". This could mean any time between 1980 and 1989. He testified that he rented the property from the Defendants for about a year whilst they were away in Australia but he could not remember the monthly rent. Then he later said he ran the bar for his brother in law (the Second Defendant) until he came back. I find that Orien did not give truthful evidence as the Second Defendant said he was away for six months and I also find that if he was renting the...
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