Kenneth McKinney Higgs, Senior v Leshel Maryas Investment Company Limited and Annamae Woodside (Bahamas)

Adverse possession must be uninterrupted for at least 20 years to extinguish an otherwise good documentary title. Successful proceedings by the documentary owner, where success requires recognition of that title, interrupt the period; if the adverse possessor remains in possession, time starts afresh. The position may differ between the protected title-holder and inactive co-tenants. Under section 12 of the Real Property Limitation Act 1833, exclusive possession or receipt of rents by one tenant in common may become adverse to inactive co-tenants. The Board also emphasised the duty of appellate courts to give reasons and remitted the partition issues for reconsideration.

The appeal arose from a partition action concerning jointly owned land in New Providence. Leshel claimed an undivided share derived from a documentary title confirmed by earlier litigation. Mr Higgs, representing his mother’s estate, asserted that prolonged quarrying and other acts had extinguished Leshel’s title by adverse possession.

The Supreme Court dismissed that possessory title claim but ordered specific parcels to be transferred to several parties. The Court of Appeal set aside the order and remitted the matter for the partition procedure to be reconsidered, without giving adequate reasons. The central issues before the Privy Council were the effect of the earlier proceedings on the limitation period, the possible position of other co-tenants, and the proper form of partition or sale.

The Board dismissed the appeal insofar as Mr Higgs sought to defeat Leshel’s documentary title, upheld the setting aside of the specific awards, confirmed the remission of the partition action, and held that the fifth defendant’s dismissed claim was not revived.

1. Interruption of adverse possession. At least 20 years’ uninterrupted adverse possession was required. The 1967 proceedings and the 1970 certificate prevented reliance against Leshel on possession before 1970. The successful 1987 proceedings and final 1988 order likewise prevented reliance on possession before 1987. Proceedings by a documentary title-holder interrupt adverse possession where success requires recognition of that title. If the adverse possessor remains in possession, a fresh period must begin. No fresh 20-year period had expired by 2002, irrespective of the quality of the acts relied on or the 1987 tractor incident.
2. Partition. The court had to ascertain the parties’ respective shares before awarding land, and no award could exceed the entitlement established. The trial judge’s award of 15.38 acres to the third defendant was unsupported, since her apparent maximum documentary entitlement was 1/18. The statutory framework in the Partition Act therefore required reconsideration. A sale might be inevitable if a fair physical division proved impracticable, but the Board’s observations did not bind the remitted judge.
3. Other co-tenants. The Board left open whether the notional interruption protecting Leshel also benefited other tenants in common. It gave non-binding guidance that section 12 of the Real Property Limitation Act 1833 could make exclusive possession, or receipt of rents and profits, adverse to inactive co-tenants. Acts on part of unfenced land might evidence possession of the whole, depending on locality and the nature and quality of the possession.
4. Force and interruption. A demand for re-entry, or refusal to permit it, did not itself stop time. The nec vi requirement did not apply to possession of land for possessory title purposes. The documentary owner had to commence possession proceedings or lawfully retake possession, consistent with J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419.
5. Reasons and costs. An appellate court must give reasons unless the parties relieve it of that duty. The Court of Appeal’s failure to explain its treatment of the possessory title issue was a failure of the judicial process, although the Board resolved the issue on the substantive ground above. The parties could make submissions within 21 days on costs; absent another order, each party would bear its own costs.

• Privy Council: Dismissed the possessory title appeal against Leshel, upheld the setting aside of the specific parcel awards, confirmed remission of the partition action, and held that the fifth defendant’s dismissed claim was not revived.
• Court of Appeal of the Commonwealth of the Bahamas: On 4 September 2007 allowed the appeal, set aside the Supreme Court order, and remitted the matter with directions concerning the Partition Act.
• Supreme Court: On 24 April 2006 dismissed the possessory title claim, ordered partition of Tract A, and awarded specified parcels to Leshel, the third defendant and Clotilda’s estate.