Patrick Smith Claimant v (1) Willy Vasson (2) James Pelius (3) William Ferdinand Claimant [ECSC]

• Jurisdiction: St Lucia
• Judge: BELLE, J
• Judgment Date: 28 September 2011
• Judgment citation (vLex): [2011] ECSC J0928-1
• Docket Number: CLAIM NO SLUHCV 2008/0026
• Court: High Court (Saint Lucia)
• Date: 28 September 2011

[2011] ECSC J0928-1

IN THE HIGH COURT OF JUSTICE

CLAIM NO SLUHCV 2008/0026

Between:

Patrick Smith

Claimant

and

(1) Willy Vasson

(2) James Pelius

(3) William Ferdinand

Claimant

BELLE, J

1 The dispute in this case arose in relation to two parcels of land described as parcels 1829B 13 and 14 Situate at La Pointe in the Quarter of Praslin. These two parcels of land were owned by Vasson Pelius (deceased) who died on 6^th July 1964. Vasson Pelius left a number of heirs including the First and Second Named Defendants. Rose Alexander obtained a grant of Letters of Administration on 29^th May, 2006 and on 21^st February, 2007 sold the parcels of land to the Claimant.

2 The evidence discloses that James Pelius never consented to the sale of the two parcels to the Claimant, although he was a lawful heir of Vasson Pelius. Both the Second Named Defendant and the Third Named Defendant William Ferdinand have been in occupation of the land from 1976, and Wiiliam Ferdinand has cultivated the land with crops and a commercial latanier farm which also contains a shed. The Second Named Defendant James Pelius also constructed a water tank andcommenced construction of a concrete structure on the land. These are fixed and attached to the land.

3 In his Statement of Claim the Claimant claimed:

• 1. The Claimant is and was at all material times the owner and entitled to possession of the parcels of land situate at La Pointe in the Quarter of Praslin and entered in the Registry of Lands as Parcels No, 1829B 13 and 1829B14 in the name of the Claimant with absolute title.

• 2. The Claimant purchased the said parcels of land from the Administratrix of the Succession of the late Vasson Pelius by Deed of Sale executed on 21^st February 2007.

• 3. The First and Second Defendants are the uncles of the Claimant and the Second (Third?)Defendant is his cousin. All of the parties are descendants of Vasson Pelius

• 4….

• 5…..

• 6….

• 7…

• 8. By Claim No.SLUHCV2007 the First Defendant challenged the Claimant's Deed of Sale which claim was dismissed with costs to the Claimant.

• 9. The Claimant has repeatedly demanded that the Defendants vacate the said land but they have refused to do so claiming that the land belongs to the family and the Defendants have wrongfully remained in possession of the said land as aforesaid.

4 Counsel for the Defendants emphasised the facts that (1) when the Claimant purchased the land in 2007 he knew that the said two Defendants occupied and possessed the land. (2) The Second Defendant William Ferdinand also constructed an access road on the land, an improvement. (3) To this date the Claimant has never served the Defendants with a Notice to Quit the land. (4) The Claimant filed this claim against the Defendants for possession. (5) The Second and Third Named Defendants counterclaimed for the cost of improvements to the land as persons in occupation.

5 Counsel for the Defendants asserts that there are 4 issues in the dispute:

• (1) Are the second and third named defendants in occupation and possession in good faith?

• (2) If yes they are entitled to compensation.

• (3) The second and third named defendants have an overriding interest in the land protected by law.

• (4) Have the second and third named defendants wrongfully remained in possession of the land as alleged by paragraph 9 of the Claimant's Statement of Claim?

6 The Claimant argues that the Defendants are not entitled to anything because they had no overriding interest in the land which they occupy. The Defendants claim that they do have an overriding interest which is recognised by statute in the form of The Land Registration Act and The Civil Code and the relevant legal authorities.

7 Quite apart from the issues identified by the Defendants then, it is necessary to define the alleged overriding interest referred to by the Defendants. Counsel for the Defendants referred to sections 23, 27 and 28 of the Land Registration Act Cap 5.01 of the Laws of Saint Lucia, Revised Edition 2001.

8 Section 23 states:Subject to the provisions of sections 27 and 28 the registration of any person as the proprietor with absolute title of a parcel shall vest in that person the absolute ownership of the parcel together with all rights and privileges belonging and appurtenant thereto, free from all other interest and claims whatsoever, but subject —

• (a) to the leases, hypothecs and other encumbrances and to the conditions and restrictions, if any, shown in the register, and

• (b) unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register…

9 Section 28 states :

Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may from time to time being subsist and affect the same, without their being noted on the register-

(e) Servitudes subsisting at the time of first registration under this Act;

(g) the rights of a person in actual occupation of land or in receipt of the income thereof save where inquiry is made of such person and the rights are not disclosed.

10 Counsel for the Defendants quoted extensively from David Hayton, on Registered Land published by Sweet and Maxwell, 1981. But none of the quotations provide aclear picture of the essence of an overriding interest. For example quoting from page 22 the author states:

"The Characteristic feature of the interests is that they are often neither shown in title deeds nor mentioned in abstracts of title in unregistered conveyancing, and they are usually easily discoverable by the inspections and inquiries which are already carried out in traditional unregistered conveyancing."

11 By way of contrast the decided cases provide more assistance as to the definition of the overriding interest referred to in the statute. InWilliams & Glyn's Bank v Boland (1979) 3 W.L.R.148 Lord Scarman stated:

" It is our duty to give the provision a meaning which will work for, rather than against the, rights conferred by Parliament, or recognised by judicial decision, as being necessary for the achievement of social justice. The courts may not put aside as irrelevant the fact that if the rights of the wives succeed the protection of the beneficial interest which English law now recognises that a married woman has in the home will be strengthened, whereas if they lose this interest can be weakened and even destroyed by an unscrupulous husband. Nor must the courts flinch when assailed by arguments that the protection of her interests will create difficulties in banking or conveyancing practice. Bankers and solicitors exist to provide the service the public needs. They can adjust their practice if it be socially required."

12 It should be noted that the overriding interest described in the paragraph above is one recognised by law based on the relationship of marriage where it is known that that relationship may confer certain beneficial interests on the wife. However in this case the argument is that the relationship of father and son conferred a similar beneficial interest, also in the case of the Third Defendant, grandson....