Landlord and Tenant-Tenancy at Will-Possession for twelve years· without paying rent-/:'imitation Acts, 1833 and 1874-No necessity for adverse possession.

The Plaintiff was in the year 1913 put in occupation of certain property rent ­free by one Hall. Hall died in 1922. The Plaintiff continued in possession and in 1929 asked for a declaration that the property was hers

The Court below refused to make the declaration sought on the ground that, though she had been in possession as a tenant at will rent-free for the statutory period, her possession had not been adverse.

On appeal, this decision was reversed on the ground that in the case of a tenancy at will the Statute begins to run notwithstanding the permissive character of the occupation.

E. S. Beoku-Betts an'd T. Amado Taywr for the Plaintiff­ Appellant.

S. A. Benka-Coker for the Defendant-Respondent. The following judgments were delivered:-

GARDINER-SMITH, J.

This is an appeal from the judgment of the Acting Judge of the Supreme Court of the Gambia, dated the 16th of January, 1930.

The plaintiff's claim was against the defendant Richard James Hall as Executor of Richard Calvert Hall, deceased, for return to her of the title deeds of No. 56 Leman Street, Bathurst, and for damages for detaining the same, or, in the alternative, for a declaration by the Court that No. 56 Leman Street is the property of the plaintiff.

As the said title deeds were in possession of the Bathurst Trading Company the trial Judge ordered that Company to be joined as a defendant.

After hearing evidence, the learned Judge dismissed the plaintiff's claim, and ordered each party to pay his or her own costs.

Five grounds of appeal were lodged, but, at the hearing of the appeal, learned Counsel for the appellant reduced these to two heads, viz:-

(1) That the land was purchased with appellant's money.

(2) That the appellant had been in possession of the property for the statutory period of twelve years, and so could claim under the Statutes of Limitation.

The first ground raises a pure question of fact. The learned Judge found that the appellant did not purchase the property out of her money. He based his finding upon the documentary evidence. Apart from the receipts for rates, which, although referred to in the judgment, were not in evidence, there was strong documentary evidence that the property was bought by R. C. Hall, and not by the appellant. The receipt for the purchase money and the .conveyance are both in R. C. Hall's name. The appellant, who had cohabited with R. C. Hall, alleged that the property was purchased for her by R. C. Hall, out of money deposited by her with him, for safekeeping, and the defendant Hall, who is appellant's son, and was to all intents and purposes her witness, corroborated this, and said that it was by mistake that the receipt for the purchase money and the conveyance were taken in R. C. Hall's name. Appellant, however, could not tell what price was paid for the property, and, although R. C. Hall's will was not in evidence, it was admitted by the appellant that he dealt with the property as his own and devised it to his sons. Moreover, the defendant Hall had previously asserted that it was R. C. Hall's property. There was, therefore, in my opinion, evidence to justify the learned Judge in disbelieving the story that the property was bought with the appellant's money, and, on the authority of the well known cases of The Colonial Securities Trust Company v. Massey (1896) I: Q..B. 34, and Khoo Sit Hoh G others v. Lim. Thean Tong (1912) A.C. 323, I see no reason to disturb his finding of fact.

Under the next main ground it was argued that, even if the appellant did not purchase the property, she was a tenant-at-will, and has acquired a title under the Statutes of Limitation. Learned Counsel for the defendant Company, on the other hand, submitted that the appellant was a mere licensee. The facts are that she was put into occupation of this property by the late R. C. Hall in 1913, and has remained there ever since, rent free. There is no evidence that she was interfered with in any way, and in my opinion her position was that of a tenant-at-will: see Lynes v. Snaith (1899) 1 Q.B. 486.

If one person allows another to remain in possession of land as a tenant-at-will, for twelve years, without payment of rent, the other person becomes entitled to the land. This is the joint effect of the Limitation Acts, 1833 (3 & 4 William IV, c.27) and 1874 (37 & 38 Vict. c.57). These Acts are in force in the Gambia by virtue of Cap. 5 section 17 of the GaIIlbia Laws. The time commences to run against the landlord, either at the determination of the tenancy-at-will, or at the end of one year from its commence­ment. whichever event first happens. Banning on the Limitation of Actions, page 138; Halsbury's Laws of England, Vol. 19, page 123, paragraph 230. In this case the tenancy-at-will would have determined at the death of R. C. Hall in 1922, therefore time commences to run from the earlier date, viz., from the end of one year from the commencement of the tenancy-at-will, i.e. it runs from 1914. The period of twelve years was therefore complete by 1926, or four years before the issue of the writ in this action.

The learned Judge considered that it was necessary that the possession should be adverse. This, however, is not the present law~ As Channell J. said in Lynes v. Snaith-  No doubt under the old law in force before 1833, that possession being permissive would have been treated as non ­adverse, and the defendant would have acquired no title against the true owner. But when the Statute of William IV did away with the old doctrine of adverse possession, a provision was inserted in that Statute that in the case of a tenancy-at­ will the Statute should begin to run notwithstanding the permissive character of the occupation, at the expiration of one year next after the commencement of the tenancy."

In my opinion the appellant is entitled to succeed on her second main ground of appeal. The judgment of the Court below must therefore be reversed and judgment substituted therefore that the Court doth declare that lot No. 56 Leman Street, Bathurst, is the property of the appellant.

Appellant to have costs, against both respondents, of this hearing of the appeal of this Court, and costs in the Court below. No costs allowed in respect of the sitting of this Court last year, when the appeal was adjourned owing to want of proof of notice to respondents. The appellant having obtained leave to appeal in forma pauperis will be allowed costs for one Counsel only. Costs to be taxed.

Court below to carry out.

TURBETT, ACTING J.

I agree. The appellant in this case was put into possession of 56 Leman Street by the late Richard Calvert Hall in the year 1913 and has remained in continuous and uninterrupted possession of this property until the present time. The deceased erected a dwelling house on this plot for the use of the appellant, and the latter built personally a shop on the premises before the deceased's death and has since built other houses in the yard without any interference from the Executor or the devisees under the will of the said deceased.

Counsel for the respondent contends that the appellant was in possession of these premises as a licensee or guest. I cannot find a scintilla of evidence in support of that view. Counsel further urges that the statement of the appellant in her evidence" I was living with him as his wife up to his death" is conclusive evidence that the appellant had not exclusive possession of the premises up to the time of Richard Calvert Hall's death. I have grave doubts as to whether this statement can only bear the interpretation that has been placed upon it by Counsel nor does the judgment in the Court below, in my opinion, find as a fact that such was the case. In this connection the learned Judge states as follows •. I think she, as the concubine of Richard Calvert Hall deceased, was provided with a residence." The judgment then proceeds further as follows, •• but it never was hers in law. The possession was never adverse, she was there with the permission of the late R. C. Hall; and her claim under the law of limitations fails." Now this assumption of fact in the judgment that the appellant had no adverse possession and was in possession with the permission of the deceased is of no consequence under the present law. A very clear statement of the existing position is set out in Darby and Bosanquets Statutes of Limitations (2nd edition) page 353 :-

The doctrine of adverse possession is, as before observed, done away with by the Act 3 & 4 William IV c.27. The effect of the 2nd section of 3 & 4 William IV c.27 (now the first section of 37 and 38 Vict. c.57) is to put an end to all questions and discussions whether the possession in favour of which the statute is to operate be adverse or not. The question is whether the prescribed period has elapsed since the right accrued, whatever be the nature of the possession. And the seventh section of 3 & 4 William IV c.27 seems especially framed to 'prevent the principle being infringed by the incidents of a tenancy at will, and therefore makes it for the purposes of the act, totally immaterial whether an occupation is permissive or not, except for the period of one year after its commencement."

In my opinion the appellant entered originally into possession of these premises as a tenant-at-will of the late Richard Calvert Hall, and that tenancy determined at the end of the first year and not at the date of death of Richard Calvert Hal1. Time then commenced to run against the owner, and by virtue of the combined effect of sections 2 and 7 of 3 & 4 William IV c.27 and of section I of 37 and 38 Viet. c.57 which has been substituted for the said section 2, there being no evidence whatever that the occupation of the appellant had in any way been interferred with, the title of the landlord and his personal representative was extinguished at the end of 13 years from the date of entry. That is in the year 1926-some three or four years before the date of commencement of this action.