Republic Bank Ltd v Seepersad et Al

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Mendonça, J.A.
• Judgment Date: 27 April 2015
• Neutral Citation: TT 2015 CA 14
• Docket Number: Civil Appeal No: S268 of 2014
• Date: 27 April 2015

Court of Appeal

Mendonça, J.A.; Jamadar, J.A.; Smith, J.A.

Civil Appeal No: S268 of 2014

Republic Bank Limited

and

Seepersad et al

Appearances:

For the appellant: Mr. F. Hosein.

For the respondents: Mr. R. Bunsee.

For the first and second defendants: Mr. P Maharaj.

Real Property - Adverse possession — Whether a person who has been in adverse possession for the requisite period, within the meaning of the Limitation Act, of lands registered under provisions of the Real Property Act, Chap 56:02 (RPA) can extinguish a title or interest of a mortgagee whose mortgage is duly registered under the provisions of the RPA.

I agree with the judgment of Mendonça, J.A. and have nothing to add.

P. Jamadar

Justice of Appeal

I too agree.

G. Smith.

Justice of Appeal

1 Mendonça, J.A.; In these proceedings which were commenced on May 9th 2012 Manichand Seepersad (by his legal attorney, Steve Seepersad) (the claimant) claims, inter alia, a declaration that the title of the defendants in a parcel of land comprising approximately 10,300 square feet at St. Mary's Village, Princes Town, (the disputed lands) is extinguished by virtue of the claimant's adverse possession. The claimant also claims a declaration that he has acquired title to the disputed lands and an order directing the defendants to convey the disputed lands to him.

2 The disputed lands are subject to the provisions of the Real Property Act Chap. 56:02 (the RPA).

3 It is an accepted fact that the first and second defendants, Raymond and Zorena Chance, recently purchased the disputed lands from the previous owner and by memorandum of transfer dated September 16th 2011 and registered on January 10th 2012 the disputed lands were transferred to them. It is also not disputed that by memorandum of mortgage registered on September 16th 2011 the disputed lands were among the lands mortgaged to the third defendant, Republic Bank Limited (the Bank), who is the appellant in this appeal.

4 In his statement of case the claimant avers that he has been in undisturbed possession of the disputed lands since 1965 and alleges that since that time he has grown crops on the disputed lands, reared ducks and chickens thereon and built pens on the disputed lands for the ducks and chickens. He also alleges that he has built a house that stands partially on the disputed lands and partially on lands rented by him.

5 The claimant relies on sections 3 and 22 of the Real Property Limitation Act, Chap. 56:03 (the Limitation Act). Section 3 bars the right to recover lands either by action or entry within sixteen years from the time when the right to bring an action or make an entry first accrued. Section 3 is as follows:

• “3. No person shall make an entry or distress, or bring an action to recover any land or rent, but within sixteen years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims, then within sixteen years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same.”

Section 22 provides that where after the expiration of the limitation period prescribed by section 3, the person entitled to do so have not brought an action or made an entry for the recovery of the land, his right and title to the land shall be extinguished. Section 22 is as follows:

• “22. At the determination of the period limited by this Act to any person for making an entry or distress, or bringing any action or suit, the right and title of such person to the land or rent for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period shall be extinguished.”

6 The claimant's case therefore is that by virtue of his undisturbed possession of the disputed lands since 1965 the right of the first and second defendants to bring an action and make an entry to recover the disputed lands is barred, their title has been extinguished and he has acquired title thereto. Further, as the defendants' title has been extinguished, his mortgage to the Bank is ineffectual to pass any title or interest to the Bank in the disputed lands.

7 The first and second defendants in their defence deny that the claimant has been in possession of the disputed lands since 1965. They admit that there is a chicken or duck pen on the disputed lands but they say that it was only very recently put there by the claimant. The defendants counterclaim for a declaration that they are entitled to possession of the disputed lands.

8 The Bank in its defence denies that the claimant has been in possession of the disputed lands since 1965. It avers that it lent money to the first and second defendants and as security for the money loaned the disputed lands were among the lands mortgaged to it by memorandum of mortgage which was duly registered under the provisions of the RPA. The mortgage is currently stamped to cover $3,500,000. The Bank alleges that by virtue of the mortgage the disputed lands are its freehold property subject to the equity of redemption in favour of the first and second defendants.

9 At a case management conference before Rahim, J., the Bank raised as a preliminary issue whether the claimant can as against it acquire title to or extinguish its title by adverse possession of lands which are governed by the RPA. The judge invited submissions from the parties on the issue.

10 Before referring to what the judge decided, it is convenient at this stage to set out some of the provisions of the RPA that are relevant to this appeal.

11 Section 37 refers to the effect of a certificate of title and provides as follows:

• “37. Every certificate of title duly authenticated under the hand and seal of the Registrar General shall be received, both at law and in equity, as evidence of the particulars therein set forth, and of their being entered in the Register Book, and shall, except as hereinafter excepted, be conclusive evidence that the person named in such certificate of title, or in any entry thereon, is seized of or possessed of or entitled to such land for the estate or interest therein specified, and that the property comprised in such certificate of title has been duly brought under the provisions of this Act; and no certificate of title shall be impeached or defeasible on the ground of want of notice or of insufficient notice of the application to bring the land therein described under the provisions of this Act, or on account of any error, omission, or informality in such application or in the proceedings pursuant thereto by the Judge or by the Registrar General.”

12 Section 45 by its margin note refers to the “conclusiveness of registration” and is as follows:

• “45. Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the State or otherwise, which but for this Act might be held to be paramount or to have priority, the proprietor of land or of any estate or interest in land under the provisions of this Act shall, except in case of fraud, hold the same subject to such mortgages, encumbrances, estates, or interests as may be notified on the leaf of the Register Book constituted by the grant or certificate of title of such land; but absolutely free from all other encumbrances, liens, estates or interests whatsoever, except the estate or interest of a proprietor claiming the same land under a prior grant or certificate of title registered under the provisions of this Act, and any rights subsisting under any adverse possession of such land; and also, when the possession is not adverse, the rights of any tenant of such land holding under a tenancy for any term not exceeding three years and except as regards the omission or misdescription of any right of way or other easement created in or existing upon such land, and except so far as regards any portion of land that may, by wrong description of parcels or of boundaries, be included in the grant, certificate of title, lease, or other instrument evidencing the title of such proprietor, not being a purchaser or mortgagee thereof for value, or deriving title from or through a purchaser or mortgagee thereof for value.”

13 Section 49 provides for applications for a vesting order by persons claiming to have acquired a title by possession. Section 49 is as follows:

• “49. A person who claims that he has acquired title by possession of land under the provisions of this Act may apply by summons for an order vesting the land in him for an estate in fee simple or other estate claimed. The summons shall be served on every person appearing in the Register Book to have any estate or interest in the land or in any encumbrance notified on the grant or certificate of title thereto or such of them as can be found.”

14 Sections 141, 142 and 143 are three of the sections under Part XV which is intituled “Indefeasibility of Title and Remedies of Persons Injured” and provide as follows:

141 Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest shall be required or in any manner concerned to enquire or ascertain the circumstances under, or the consideration for which, such proprietor or any previous proprietor of the estate or interest in question is or was registered, or to see to the application of the purchase money or of any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.

142 Any...