IN THE COURT OF APPEAL BETWEEN AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Civil Appeal No: 243 of 2011 IN THE COURT OF APPEAL BETWEEN XAVIER GOODRIDGE Appellant AND BABY NAGASSAR Respondent PANEL: A. Mendonça, J.A. A. Yorke-Soo Hon, J.A. R. Narine, J.A. Appearances: For the Appellant Mr. C. Selvon For the Respondent Mr. R. Gosine Date delivered: January 23 rd 2015 Page 1 of 14

2 I agree with the judgment of Mendonca J.A. and have nothing to add. A. Yorke-Soo Hon, Justice of Appeal I too agree. R. Narine Justice of Appeal REASONS Delivered by A. Mendonça, J.A. 1. On January 12 th 2015 we dismissed this appeal and ordered that the Appellant pay the Respondent s costs of the appeal determined at two thirds of the costs allowed in the Court below. We indicated then that we would give our reasons for so doing at a later date. This we now do. 2. The central issue in this appeal is whether the Respondent, who was the claimant in the claim, was entitled to judgment in this action against the defendant, who is now the Appellant, for possession of lands not having pleaded and proven her title to the subject lands for a period of twenty years, which is the period of the commencement of title which a purchaser may require from a vendor under a contract for the sale of land in accordance with section 5 of the Conveyancing and Law of Property Act Chap. 56:01 (CALPA). 3. In these proceedings the Respondent claimed a declaration that she is the owner of two parcels of land in the Ward of Siparia, a declaration that she is entitled to possession of the lands, damages for trespass, certain injunctive and other ancillary relief. The Respondent s case as set out in her statement of case was that by deeds of assent dated February 9 th 1999 Amarnath Rampersad became the owner of the said lands. In 2001 the lands were conveyed by Amarnath Rampersad to her and her husband as joint tenants and in 2002 her husband conveyed his interest in the lands to her. Page 2 of 14

3 4. The Respondent and her husband did not live on the lands after they purchased them. However, they lived nearby and cultivated the lands. In 2002 they stopped cultivating the lands as the Respondent s husband became ill and the Respondent began to look after him. He died in 2003 and after his death the Respondent began to look after her grand children. 5. The Respondent averred that on or about January 4 th 2009 the Appellant, his servant or agent wrongfully entered the two parcels of land and planted a few coconut trees. By letter dated January 8 th 2009 the Respondent wrote to the Appellant requesting that he desist from entering the lands but he continued to do so. On March 6 th 2009 she commenced these proceedings. 6. The Appellant filed a defence and counterclaim. In his defence and counterclaim he referred to a four-acre parcel of land which he said was rented by his grandfather from about His grandfather paid a yearly rent until October 1970 when he ceased to pay any further rent. The Appellant further stated in his defence and counterclaim that his grandfather and grandmother occupied the four-acre parcel of land from about 1954 cultivating it with a number of crops. They also reared animals on the parcel of land. His father grew up on the lands. After the death of his grandfather on January 8 th 1977, his father continued in possession cultivating the lands. In 1999 his father migrated and the Appellant and his brothers continued in occupation of the four-acre parcel of land. The Appellant stated that the lands were completely fenced by his grandfather and father with barbed wire, teak trees and other trees in between to help maintain the strength of the barbed wire fence. The Appellant counterclaimed for a declaration that he was entitled to be registered as the owner of the lands, damages for trespass and an injunction restraining the Respondent from entering upon and remaining on the said lands. 7. The trial Judge, Devindra Rampersad J. noted that the Appellant did not say in his defence and counterclaim that the two parcels of land claimed by the Respondent formed part of the fouracre parcel of land. The Judge however stated that the parties assumed that it was the Appellant s case that the lands claimed by the Respondent fell within the four-acre parcel of land. The Judge therefore proceeded to deal with the matter on the basis that the Appellant s case was that the lands claimed by the Respondent fell within the four-acre parcel of land. 8. Both the Respondent and the Appellant filed witness statements in support of their respective cases. A substantial part of the Appellant s witness statement was however struck out by Page 3 of 14

4 the Judge on the ground that it contained inadmissible hearsay. There has been no appeal from that order. The parties were both cross examined on their witness statements. 9. The Judge in his judgment referred to parts of the cross examination. In particular he noted that the Respondent stated that from where she lived she was able to see the two parcels of land and that she never saw the Appellant or his family on the lands until She stated that the Appellant occupied a four-acre parcel of land which was not in the vicinity of the two parcels of land but was part of another parcel of land. 10. With respect to the Appellant the Judge noted, inter alia, that he sought to rely on a survey plan of the four-acre parcel of land which was not signed by the surveyor. Further the surveyor did not give evidence. The Judge commented that in those circumstances: This caused great concern to the court. Mr. Bhikarry [the surveyor] was obviously an independent professional and expert who could have spoken about the defendant s alleged occupation in 2007 which would have been prior to the claimant s allegation as to when the defendant entered onto the land - which she put as However, Mr. Bhikarry did not attend to give evidence Further, and rather incredibly, the defendant sought to rely upon a survey plan allegedly prepared by Mr. Bhikarry and to put great emphasis upon it when in fact he did not have a properly signed and prepared version of it for production to this court This, of course, left a great doubt in the court s mind as to the bona fides of the defendant and with respect to the true reason for Mr. Bhikarry not attending court to support the defendant and to validate his alleged survey plan In this regard, the court has serious doubts as to whether Mr. Bhikarry would have in fact supported the defendant - if even he did in fact do the plan. The Judge also noted that the Appellant admitted that the Respondent lived four hundred feet away from the parcels of land claimed by her and that she would have been able to see the subject lands when she came out on the road and would have seen if the lands were occupied. 11. The Judge did not accept the evidence of the Appellant. He noted that the Appellant did not impress him as a truthful witness. The Appellant had failed to satisfy the Court that his defence had any merit and that he was entitled to the relief sought in the counterclaim. The Judge preferred and accepted the evidence of the Respondent. He stated: Page 4 of 14

5 45. On the other hand, the claimant was not seriously threatened or shaken in crossexamination and some of what she had to say was corroborated by the defendant himself such as the fact that she lived in the area for a long time just about 400 feet away from the lands and could have seen if anybody was in occupation thereof. It seems hardly credible that the claimant would have agreed to purchase lands in 2001 if the lands were in occupation by the defendant. She would have known - she ought to have known - if the subject lands and the lands surrounding it were in any way occupied by the defendant and his family. It is not in contention that she was able to see the lands quite clearly from where she was. So why would she buy into contention or conflict: that just does not make any sense. 46. This court believes that after purchasing the lands the claimant occupied it planting short crops for a while and that she eventually stopped planting the same because of the illness of her husband, who eventually died shortly thereafter. This account had a ring of truth to it and the court accepts what she has to say about that. 12. The Judge then dealt with what he described as the title issue. This arose as a consequence of the Appellant s submission that for the Respondent to succeed, she had to do it on the basis of the strength of her own title as she was not in possession of the lands at the material time. In those circumstances she had to plead and strictly prove her title. Proof of title entailed not simply putting in evidence the deed by which the Respondent purportedly acquired the property but deducing title for the full period as a purchaser may require from a vendor in a contract for the sale of land under the provisions of the CALPA. In this regard reference was made to section 5 of the CALPA which provides that in respect of any contract for the sale of land after October 13 th 2000 and subject to any stipulation in the contract twenty years shall be the period of commencement of title which the purchaser may require. The Appellant therefore submitted that the Respondent was required to plead and strictly prove her title with a commencement date of twenty years prior to the purchase of the lands. This, he contended, the Respondent did not do. Counsel relied on Civil Appeal 50 of 1960 Olga Charles v Harrichand Singh and Another which set out that proposition, and he also referred to High Court Action 522 of 1975 Ramdhan and Ramdhan v Solomon, High Court Action 1278 of 1980 Man Hong and Others v Gainpaul Singh, High Court Action T101 of 1998 Murray v Biggart and Civil Appeal 5 of 1996 Merle Thomas v Aslyn Campbell. The Judge did not accept this submission preferring instead to apply Ocean Estates Ltd. v Pinder [1969] 2 W.L.R This is a decision of the Privy Council from the Court of Appeal of the Bahamas. The Privy Council in this judgment did not accept that a provision similar to section 5 of the CALPA had any relevance to an action for the recovery of lands against a trespasser, and where no attempt is made by the defendant to prove any documentary title, a claimant can rely upon the conveyance of the land to himself because where a person has dealt in land by conveying an interest in it to another Page 5 of 14

6 person, there is a presumption, until the contrary is proved, that he was entitled to the estate in the land which he purported to convey. The Judge concluded that as the Respondent had pleaded and proved the deeds by which the lands were conveyed to her, she had discharged the burden upon her. In the circumstances, the Judge declared the Respondent to be owner of the lands, made an order for possession in her favour and granted a perpetual injunction restraining the Appellant from entering and remaining upon the lands. He also made an order for the payment of damages and costs by the Appellant to the Respondent. Accordingly he dismissed the Appellant s counterclaim. 13. The Appellant appealed. His counsel took no objection to the Judge s assessment of the evidence. He acknowledged that his claim to the lands was based on long possession and he conceded that the evidence did not establish that he was in possession of the lands sufficiently long enough to extinguish the Appellant s title to the lands (assuming the Respondent had title to the lands) pursuant to the provisions of the Real Property Limitation Act Chap. 56:03. The Appellant however submitted that the Respondent s case was based entirely on her documentary title and she did not sufficiently prove it. He submitted that it was necessary for the Respondent to plead and prove her title for a period of twenty years prior to her acquisition of the lands and this she failed to do. The Judge was therefore wrong to give judgment for the Respondent. And as he had done before the trial Judge he again relied on the case of Olga Charles and the other cases referred to earlier. 14. This appeal therefore turns on whether the Judge correctly decided what he described as the title issue. It is therefore appropriate to consider in more detail the cases of Olga Charles and the other cases referred to, which in essence apply Olga Charles, and the case of Ocean Estate Ltd v Pinder. 15. In Olga Charles the respondents claim was for the recovery of possession of a lot of land on the ground that they purchased it from the vendor by a deed dated January 20 th The appellant s case was that she was the owner of the house on the land and beneficially entitled to a tenancy in respect of the land. The Court of Appeal noted that the respondents could recover possession either on the footing that the appellant was their tenant or held some title derived from their tenant, in which case she could not dispute the landlord s title, or they could get an order for recovery of the lands on the strength of their own title but without regard to the weakness of the appellant s title. The respondents denied that the appellant was a tenant or had any right as such either immediately or derivatively. They contended that the appellant was a trespasser. In those Page 6 of 14

7 circumstances the Court of Appeal stated that the respondents had to prove their title and to prove it strictly. Wooding, C.J. in giving the judgment of the Court stated: Merely putting in a certified copy of a deed whereby two or three months before they purchased a lot of land from the alleged owner of it is not proof of title. It would be necessary to show that the vendor of the lot had a right to sell, that is to say, a title which she could pass on. And in the absence of that proof the title of the respondent was not proved. There is no presumption from the putting into evidence of a certified copy of a deed of such recent date, and the appellant would be entitled to sit by quietly, say nothing save merely to contend that title had not been proved against her, and that therefore the order for recovery of possession was not one which it was competent for the learned judge to make. Title not having been proved, and tenancy not being the case, it is our view that the respondents failed to prove the case which they sought to make out, and that accordingly they should not have had judgment awarded them, and therefore the appeal must be allowed. 16. The Court also referred to the following passage in Bullen and Leake s Precedents of Pleadings (11 th edition) at p. 45: If the defendant asserts that he is in possession of the land by the permission of the plaintiff, he thereby admits that the plaintiff had the right so to place him in possession. In other words, he admits the plaintiff s title at that date, though he may contend that it has since determined, as, for instance, if the lessor himself had only a leasehold interest. Where, however, there is no suggestion that the defendant received possession from the plaintiff, or has paid him rent, the onus lies on the plaintiff of strictly proving his title, and he must state his title in full detail in his pleading, deducing it step by step through the various mesne assignments. On the other hand the defendant is allowed to state merely that he is in possession and thus to conceal all defects in his title, unless he is in possession by virtue of a lease or tenancy granted by the plaintiff or his predecessor in title, or unless he relies on some equitable defence, in which case he must plead it specifically. 17. It is relevant to emphasize that in the judgment of the Court of Appeal it was not sufficient for the respondents in Olga Charles to prove their title to merely rely on the deed by which they acquired the property. There was, according to the Court of Appeal, no presumption arising from putting that deed into evidence and it was necessary to show that the vendor of the lot had a right to sell, that is to say, a title which the vendor could have passed on. 18. In High Court Action 522 of 1975 Ramdhan and Ramdhan v Solomon, the plaintiffs claimed, inter alia, possession of a parcel of land. They claimed to be the owners of the land having purchased it by deed dated August 10 th They relied on that deed as evidence of the title. The defendant was in occupation of the parcel of land. The plaintiffs claimed that there was no legal Page 7 of 14

8 relationship between them and the defendant and alleged that she was a trespasser. Ibrahim, J. (as he then was) applied Olga Charles. He stated that: In an action to recover land where the defendant is alleged to be a trespasser, the plaintiff must prove that he is entitled to recover the land as against the person in possession. He recovers on the strength of his own title, not on the weakness of the defendant s. The plaintiffs were therefore required to state their title in their pleading for the full period required by section 5 of the Conveyancing and Law of Property Act deducing it step by step through the various mesne assignments. The Judge concluded that the plaintiffs had not established on the pleadings their title for the requisite period and had produced in evidence only the 1971 deed by which they purportedly acquired the property. They had therefore failed to plead and prove their title. 19. High Court Action 1278 of 1980 Man Hong and others v Gainpaul Singh was another case where Olga Charles was applied. This was an action for damages for trespass upon a parcel of land. The plaintiffs claimed to have derived their title to the lands by a deed dated June 26 th 1980 and pleaded that their predecessors in title had been in continuous and undisturbed possession sometime prior to a deed of mortgage dated October 19 th The defendant denied that he was a trespasser and claimed that he had a right of way over the plaintiff s lands. He based his claim to the right of way on two grounds one was long user of the right of way and the other was on the basis of a grant of the right of way to him by Caroni Limited, which was contained in a 1965 deed of conveyance of the parcel of land by Caroni Limited to him. He relied only on that deed as evidence that the right of way was granted to him. The defendant counterclaimed for a declaration that he was entitled to use and was the owner of the right of way. It is of course the second ground (entitlement by grant) on which the defendant based his claim to the right of way that is of relevance here. The plaintiffs case was that their predecessor in title was not Caroni Limited which they alleged did not own any land adjoining their land. In those circumstances, Edoo, J. (as he then was) stated that it was necessary to determine who had a better title to the lands over which the alleged right of way passed. He referred to Olga Charles which he said was a claim between landlord and tenant and to the passage from Bullen and Leake s Precedents of Pleadings referred to in that case and stated that the same principles applied to the case before him. He then said: The plaintiffs are entitled to base their title on a continuous and uninterrupted possession by their predecessors prior to the conveyance to them by [the vendor]. If the defendant claims a disputed strip he must either show that he and his predecessors in title have owned Page 8 of 14

9 the land before the plaintiffs and their predecessors entered into possession and they have not been ousted from possession by the predecessors of the plaintiffs. 20. The Judge then went on to refer to section 5 of the CALPA which at the time provided that a purchaser may require the vendor to deduce title for a period of thirty years (and not twenty years as it is today) and stated: It is incumbent, however, on the defendant to deduce his title previous to the year 1949 for it is from that time that the plaintiffs are claiming uninterrupted possession. The defendant has not done so in his Defence and Counterclaim. Nor does the deed by which he allegedly derived title deduce the title of Caroni Limited for any period of time whatever previous to the conveyance to him. The Judge therefore rejected the claim of the defendant that he was entitled to the right of way by grant. 21. Olga Charles was again followed in High Court Action T101 of 1998 Murray v Biggart. In that case Smith, J. (as he then was) summarized the law as follows: Unless a Defendant is in possession of land with the consent of the Plaintiff (e.g. a tenant), a Plaintiff who seeks possession of land from a Defendant must prove his title to the land strictly. He must set out all the links on his title, showing a good root of title and establishing that he is the owner of the land. In a claim for possession, a Plaintiff succeeds on the strength for his own title and not on the weakness of the Defendant s title. The plaintiff claimed to be the owner of the disputed lands and relied on two deeds of assent to establish his documentary title to them. The defendant claimed to be in long possession of the lands. The Judge found that the plaintiff had to prove his title for a period of 30 years (which was then the period stipulated in section 5 of the CALPA). The Judge, however, held that the plaintiff had failed to establish a good root of title and had therefore failed to prove his title. He accordingly dismissed the plaintiff s claim for damages for trespass. 22. Ocean Estates Limited v Norman Pinder [1969] 2 W.L.R was decided by the Privy Council on an appeal from the Court of Appeal of the Bahamas after Olga Charles but before Ramdhan, Man Hong and the Murray cases. It was however not referred to in any of those cases but it does not support the reasoning in Olga Charles which was applied in those cases. 23. In Ocean Estates the plaintiffs sued the defendant for damages for trespass to land. At the trial of the action they relied on their documentary title and duly proved the devolution of their freehold title in the lands in question from a conveyance dated May 3 rd The defendant claimed Page 9 of 14

10 a possessory title to the whole of the lands and advanced no claim to any part of the land as distinct from the whole. The trial Judge held that the defendant had failed to prove a possessory title to the whole of the lands and gave judgment for the plaintiffs. Lord Diplock, who gave the judgment of the Board, explained in the following terms what transpired before the Court of Appeal: Before the Court of Appeal the point was taken for the first time that the plaintiffs had failed to prove a sufficient documentary title because their title could not have been forced upon an unwilling purchaser under section 3(4) of the Conveyancing and Law of Property Act [which for present purposes is to the same effect as section 5 of the CALPA], as it commenced with the conveyance of May 3 rd 1937 which was less than thirty years before the date of the writ. The contention was accepted by the majority of the Court of Appeal, who regarded the plaintiffs as being in no better position than if they had no documentary title at all. They accordingly treated the action as if it were one between competing trespassers, each relying upon his own actual occupation of the land, and held that the plaintiffs had failed to establish a possessory title. On this ground they allowed the appeal. 24. Lord Diplock went on to explain that the defendant did not seek to uphold the judgment of the Court of Appeal upon the ground mentioned above. But the Board clearly was not in agreement with it. Lord Diplock stated: In their Lordships view the question of what documentary title a vendor is entitled to insist on forcing upon a purchaser has no relevance to the present action. At common law as applied in the Bahamas, which have not adopted the English Land Registration Act, 1925, there is no such concept as an absolute title. Where questions of title to the land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither party to the action nor a person by whose authority B is in possession or occupation of the land. It follows that as against a defendant whose entry upon the land was made as a trespasser a plaintiff who can prove any documentary title to the land is entitled to recover possession of the land unless debarred under the Real Property Limitation Act by effluxtion of the 20-year period of continuous and exclusive possession by the trespasser. In the present case where the defendant made no attempt to prove any documentary title in himself or in any third party by whose authority he is in occupation on the land it would have been sufficient for the plaintiffs to rely upon the conveyance of the land to himself of March 30 th, 1950; for where a person has dealt in land by conveying an interest in it to another person there is a presumption, until the contrary is proved, that he was entitled to the estate in the land which he purported to convey. In fact, however, the plaintiffs went further than was strictly necessary. They proved the devolution of title going back through a series of intervening conveyances to the conveyance of the fee simple in the land by Mrs. Key to the Chipper Orange Co. Ltd. of May 3, The Board was therefore of the view that: Page 10 of 14

11 i. the period provided for in section 3(4) of Conveyancing and Law of Property Act of the Bahamas, which is to the same effect as section 5 of the CALPA and stipulates the period of the commencement of title which a purchaser under a contract for the sale of land may require, was not relevant in an action for trespass where the defendant proved no documentary title in himself; ii. in the case of common law lands (as opposed to a system of registered conveyancing such as under the Real Property Act) there is no concept of an absolute title and the Court is concerned with the relative strength of the titles proved by the rival claimants. A party who can prove any documentary title to the land is therefore entitled to possession against a trespasser, unless the trespasser can establish that the party s title has been extinguished by the appropriate period of continuous possession under the relevant statutes of limitation; iii. where the defendant made no attempt to prove any documentary title to the lands in question in himself, (or in any third party by whose authority he was in occupation of the land), it is not necessary for the plaintiff to prove each link in his title. It is sufficient if he produces in evidence the conveyance to himself because where a person has dealt in land by conveying any interest in it to another person, there is a presumption, until the contrary is proved, that he was entitled to the estate in the land which he purported to convey. The observations of the Privy Council in the Ocean Estates case are inconsistent with the decision of the Court of Appeal in Olga Charles and of course with the cases referred to above that applied Olga Charles. 26. Where questions of title arise in litigation the Court is concerned with the relative strengths of the title proved by the rival claimants. A claimant, who relies on his documentary title to obtain possession of land against a trespasser who does not seek to prove any documentary in himself, although he has to adduce some evidence of ownership of the lands, need not adduce evidence of title to the lands for the same period as may be required of a vendor by a purchaser under a contract for the sale of lands under section 5 of the CALPA. The claimant may rely on the presumption as referred to by Lord Diplock. As the claimant may succeed even though he need not strictly prove his title for the same period as may be demanded by a purchaser of lands, it follows that he need not set out such a title in his pleading. 27. The Court of Appeal is bound by its previous decisions and is obliged to follow them. There are however certain limited exceptions to this. One of them is where a decision of the Court of Appeal, though not expressly overruled, is inconsistent with a decision of the Privy Council that is binding on it (see Young v Bristol Aeroplane Co. Ltd. [1944] 2 All ER 293 and Civil Appeal 25 of 2003 The Attorney General of Trinidad and Tobago v Rodney Teeluck). As I am of the view Page 11 of 14

12 that the decision of the Privy Council in Ocean Estates is binding on this Court (as I will discuss below) and the decision of the Privy Council is inconsistent with Olga Charles, in my judgment to the extent that Olga Charles and the cases that applied it decided it was necessary for the claimant seeking possession of lands against a trespasser, who proved no documentary title in himself, to plead and prove each link in his title for the same period as a purchaser may require of a vendor under a contract of sale as provided for in section 5 of the CALPA, they were wrongly decided and should not be followed. 28. As I mentioned, Ocean Estates was decided after Olga Charles and quite obviously the Court would not have had the benefit of the judgment of the Privy Council. Unfortunately in the cases decided subsequently, to which I have referred above, Ocean Estates appears not to have been brought to the attention of the Court. Had it been they would have been bound to apply it. 29. In Petty Civil Court s appeal No. 5 of 1996 Merle Thomas v Aslyn Campbell the Ocean Estates case was referred to in the judgment of the Court of Appeal but the Court however still followed and applied Olga Charles. With all due respect however, it does not appear to me that the Ocean Estates case was fully considered. 30. In the Thomas case the appellant claimed possession of a parcel of land. He relied on his documentary title and submitted that he was the owner of the lands by a deed registered in He relied solely on that deed and contended that he had a good title to the land. The respondent claimed no title in the land other than by possession and put the appellant to strict proof of title to the land. Permanand, J.A, speaking on behalf of the Court of Appeal, stated that counsel for the appellant placed reliance on the case of Ocean Estates as authority for the proposition that the appellant was not required, in proof of her title, to produce more than the deed by which the lands were conveyed to her by the vendor. Permanand, J.A. then stated: it is to be noted that in the Ocean Estates case Lord Diplock stated: The devolution of the plaintiffs freehold title from the conveyance of May 3, 1937 was duly proved at the trial. No point was taken as to its sufficiency and the trial proceeded on the footing that the only remaining issue was whether or not the defendant had established that the plaintiffs and their predecessors in title had been dispossessed of the land or had discontinued possession thereof for more than twenty years before December Page 12 of 14

13 No mention was made by the Court of Appeal that before the Court of Appeal of the Bahamas the point was taken that the plaintiff had failed to prove a sufficient documentary title, that the Court of Appeal had agreed with the submission, but that the Privy Council found that the Court of Appeal was wrong to do so. The Court of Appeal in my view overlooked the Privy Council s pronouncements on that issue. The Court erred in doing so and could not have ignored what the Privy Council held on that point. For similar reasons as I expressed above in relation to Olga Charles, I do not consider the decision in Thomas binding authority and it should not be followed. 31. Counsel submitted that this Court should not follow the Ocean Estates case because what the Board said in relation to proof of the Appellant s title in that case was not part of the ratio decidendi of the case and in any event Ocean Estates is a case from the Bahamas and not this jurisdiction. Taking the points separately, I will first consider whether the statements of Lord Diplock on the title issue are part of the ratio decidendi of the Ocean Estates case. 32. Of course the ratio decidendi of a superior court is alone binding on lower courts. The ratio decidendi is the reason or principle upon which a question before a court has been decided. It follows therefore that the ratio decidendi of decisions of the Privy Council are binding on the Court of Appeal and the other courts of this jurisdiction. Dicta may be treated differently. They have no binding authority, although they may be persuasive. Dicta in a judgment of the Privy Council would carry great weight and it would not be seemly for this Court to simply ignore the dicta of the Privy Council especially where they are contained in a unanimous judgment of the Board. The Court, however, would be entitled for good reason, to decline to be bound by the dicta. In any event I do not agree that the statements made by the Privy Council in relation to the proof of title were not part of ratio decidendi of the Ocean Estates case. 33. The Court of Appeal of the Bahamas, as I have mentioned above, had taken the position that the plaintiffs had not established a sufficient documentary title. The Privy Council decided that that was not so for the reasons already referred to above. Having decided that issue in favour of the plaintiffs the Privy Council then dealt with the other issue, which was whether having established a good documentary title the plaintiffs had sufficient possession to maintain an action in trespass. The observations of the Privy Council in relation to proof of the documentary title are grounds for the decision of the Board and constitute one of the reasons or principles upon which the question before the Court was decided. It is no less so than the other issue addressed by the Privy Council, namely Page 13 of 14

14 whether the plaintiffs having establish a documentary title had sufficient possession to maintain the action. The ratio decidendi of a case need not consist of a single reason or principle. 34. With respect to the other submission that Ocean Estates, being a case from the Bahamas, is not binding on this Court, I do not believe that that in itself is a good and sufficient reason for it not to be binding. Decisions of the Privy Council on appeals from other jurisdictions are binding on this Court where the issue of law is the same before this Court as it was before the Privy Council and there is nothing to suggest that the law in this jurisdiction is any different (see Jamaica Carpet Mills Ltd. v First Valley Bank (1986) 45 WIR 278). 35. In this case the title issue addressed in the Ocean Estates case is the same here. The Privy Council interpreted the common law as applied in the Bahamas in relation to common law lands. It has not been shown that the common law here has developed in any different way. In fact I think that it is clearly apparent from Ogla Charles for what the Court of Appeal attempted to do by its references to Bullen and Leake s Precedents of Pleadings was to understand the common law position and apply it to this jurisdiction. There was no indication in the judgment of the Court of Appeal in Olga Charles that the law in this jurisdiction had developed in any different way. 36. In the circumstances in my judgment the Ocean Estates case is authority that is binding on this Court and should be applied. It was therefore not necessary for the Respondent, as contended for by the Appellant, to plead and strictly prove her title for the same period as may be required of a vendor by a purchaser under section 5 of the CALPA. Insofar as the Respondent relied on her documentary title she of course had to adduce evidence of it. She was however able to discharge the burden on her by adducing in evidence the deeds by which she acquired the lands. In the circumstances the trial Judge was correct to reject the submissions of the Appellant with respect to the title issue. 37. For the above reasons we dismissed the appeal and made the orders referred to earlier in this judgment. A. Mendonça, Justice of Appeal Page 14 of 14