Stanford International Bank Ltd v. Lapps (Antigua and Barbuda)  UKPC 50 (20 November 2006)
Privy Council Appeal No 19 of 2005
Stanford International Bank Ltd Appellant
Austin Lapps Respondent
THE COURT OF APPEAL OF
ANTIGUA AND BARBUDA
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 20th November 2006
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Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
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[Delivered by Lord Scott of Foscote]
"He assured me that Stanford was temporarily propagating some plants with which he hoped to beautify the airport, that the land was not for sale and Mr Stanford had no authority to interfere with the land I had been occupying. I thereafter prevented Mr Stanford from any further use of the said land."
Mr Lapps had given testimony to the same effect in an affidavit he swore on 17 September 1996 in interlocutory proceedings. After referring to the Prime Minister's assurances Mr Lapps continued:
"I proceeded to prevent Mr Stanford from any further use of the lands, pointing out to him that he already had sufficient land on which to propagate his plants."
"Based on my research and my own personal knowledge, there is [not] and never was any agreement between the Government of Antigua and Barbuda and Mr Austin Lapps wherein the Government agreed to lease or otherwise dispose of lands at Coolidge now described as Registration Section: Barnes Hill & Coolidge, Block: 41 2094A, Parcel: 384 or any part thereof [to] Mr Lapps."
He was not cross-examined.
"In the premise, I am to advise that my Client intends to fully utilize the entire leased property and, in the circumstance, hereby request that you remove the said construction materials and debris therefrom by 9th August, 1996. Please be guided accordingly."
"While in the process of commencing the operation in respect of moving the said materials, Mr Lapps vehemently objected and embarked upon a process of extremely threatening behaviour upon which the plan to remove the said materials and debris was aborted."
"On Monday 11 November 1996, the Claimant, in defiance of the order of the court, once more sent its servants and agents onto the land and again removed the Defendant's building materials and fencing …"
And in the Court of Appeal Redhead JA, as he had become, giving the judgment of the court, repeated in paragraph 20, almost verbatim, the cited comment made by Mitchell J and then said
"There is no …. attempt by the appellant to deny these serious allegations."
But there was no court order of which the actions of the bank referred to by Mitchell J and Redhead JA would have been in breach. It is possible that the references to an order of the court may have been a reference to the undertaking said to have been given by the bank to Benjamin J. The problem, however, with that suggestion is that there is no record on the court files of any such undertakings having been given to Benjamin J by either the bank or Mr Lapps. Mr Dane Hamilton, attorney for Mr Lapps before Benjamin J, in an affidavit of 22 June 2006, said this about the hearing:
"I was present as was my client Austin Lapps. The hearing took place in Chambers. Both parties by their counsel agreed to maintain the status quo on Mr Justice Benjamin expressing the view that the matter ought to be given a speedy trial."
But Dr Errol Cort, who appeared for the bank at the hearing, in his affidavit of 22 June 2006, gave evidence to the contrary:
"… the issue of an undertaking or agreement to maintain the status quo did not arise. No undertaking was ever given by either counsel nor was any agreement sought or reached between counsel whether oral or otherwise regarding maintaining the status quo. Given the highly contentious nature of the matter, the importance and significance of the issues at that point to the parties, any alleged undertaking or agreement of whatever nature would have been reduced to writing and filed as a consent order, but this did not happen."
The judgment of Mitchell J
"… the oppressive and violent way in which the Claimant evicted the Defendant without any warning; the complete absence of any right to possession of the land by the Claimant by way of a registered lease at the time that the eviction by the Claimant took place …"
"… the fact that the Claimant is an apparently rich and powerful banking institution which appears to have used its wealth and substance, and its access to uniformed officers of the Police Department, to assist it in its unlawful eviction of the Defendant, to bully its feebler neighbour the Defendant; and the continued acts of the Claimant over the years following 1995 when it wrongfully continued to exercise by force its claim to a right to possess the portion of Parcel 384 occupied by the Defendant, including its removal from the site after Hurricane Luis of the Defendant's building materials needed for the extension of his Hotel."
The bank's appeal to the Court of Appeal
(i) the point of time at which Mr Lapps' tenancy at will of the 0.6 of an acre came to an end;
(ii) the point of time at which Mr Lapps became a trespasser on the 0.6 of an acre;
(iii) whether the bank should have been awarded damages for the period during which Mr Lapps had been occupying the land as a trespasser;
(iv) whether the quantum of general damages awarded to Mr Lapps was excessive.
The Skeleton Argument provided by Dr Cort to the Court of Appeal addressed each of these issues.
(i) Paragraph 5 of the judgment, referring to the bank's entry on to the disputed land in October 1995, said that the bank had "occupied the land for at least one year before it was granted the lease." But Mr Lapps' evidence was that soon after the bank's entry on to the land, and having consulted the Prime Minister, he (Mr Lapps) had "prevented the bank from making any further use of the land." This error was repeated in paragraph 28 of the judgment.
(ii) Paragraph 6 of the judgment said that Mitchell J had "dismissed [the bank's] claim". But the judge had held that the bank was entitled to possession of the disputed 0.6 of an acre and, after his judgment had been given, the bank went into possession. However, the formal order of the judge has not been included in the Record before the Board and it is therefore possible that, although it would have been inconsistent with his judgment, the judge did dismiss the bank's possession claim.
(iii) Their Lordships have already referred to Redhead JA's reference in paragraph 20 to the bank's breach of a court order that appears, from the documents before their Lordships, not to have existed. A further reference to this believed order is made in paragraph 24 where the learned justice of appeal said this:
"The attitude of the appellant demonstrated a callous disregard for the laws of the country because while the injunction was in force the appellant with unbridled arrogance scoffed at our hallowed institution, defied the order of the court and repeated its acts which it was enjoined not to do" (emphasis added)
The only injunction made against the bank was the injunction made by Redhead J (as he then was) on 22 November 1996. There is no suggestion, or evidence, that thereafter, until judgment had been given by Mitchell J, the bank had re-entered the 0.6 of an acre or done anything that represented a breach of that injunction.
(iv) Finally, mention needs to be made of paragraph 29 of the judgment, in which Redhead JA referred to the allegations of nuisance by noise that had been made by Mr Lapps and treated those allegations as relevant to the quantum of damages awarded to him. But Mitchell J had made no findings regarding those allegations and had not awarded any damages for the alleged nuisance by noise. The general damages of $270,000 that the judge had awarded had been damages for trespass.
"26. Dr Cort referred us to Martinali v Ramuz and another 1953 2 All ER 892. At page 893 Denning LJ as he then [was] said:
'It is elementary that tenancy at will is determined by a demand for possession, not by a notice to quit'.
27. I do not think that the law is in any doubt. However the demand must come from or through some action of the landlord."
As to the bank's damages claim for the period that Mr Lapps had been in occupation, Redhead JA referred to the claim (see paragraphs 17 and 18) but allowed no deduction on that account from the damages held to be payable by the bank to Mr Lapps.
The issues before the Board
"A tenancy at will is implied where a person is in possession by the owner's consent…Such a tenancy is implied accordingly in cases of mere permissive occupation without payment of rent…"
But it was held in Doe d Hull v Wood 14 M&W 682 at 687 that an affirmative consent was necessary and not simply a mere negative or silent consent. The evidence of the Cabinet Secretary makes it tolerably clear that there was never any affirmative consent by the Cabinet to Mr Lapps taking possession of the 0.6 of an acre. He went into and remained in occupation of the land to the knowledge and with the encouragement of the Prime Minister but nothing has been shown to their Lordships to indicate that the Prime Minister had any authority to create a tenancy at will over this small piece of Crown land. Paragraph 170 of the same volume of Halsbury's Laws says that:
"Entry into occupation of land pending negotiation for the grant of a lease…gives rise to a tenancy at will…"
But although Mr Lapps regarded himself as in occupation pursuant to an oral agreement for a lease there is no evidence that there were ever any negotiations to settle the terms of the lease and no rent was ever paid. Accordingly their Lordships have some doubt whether there was sufficient justification for according Mr Lapps the status of a tenant at will. However their Lordships are content to proceed on the footing that Mr Lapps did enjoy that status. It is common ground that until the advent of the bank in October 1995 Mr Lapps enjoyed a quality of possession of the 0.6 of an acre, sufficient to sustain a trespass action if his possession were disturbed by someone with no better right to possession that he had. The important issue is when Mr Lapps' assumed tenancy at will came to an end.
"The tenancy is impliedly determined by the landlord when he does any act on the premises which is inconsistent with the continuance of the tenancy…and also when he does an act off the premises which is inconsistent with the tenancy, as, for example, when he grants a lease of the tenancy to commence forthwith. An act done off the premises does not, however, determine the tenancy until the tenant has notice of it."
Among other cases, Doe d Davies v Thomas (1851) 6 Ex 854 is cited in the notes to paragraph 173 as authority. Parke B stated the law in clear terms:
"The law upon the subject is, that if an assignment or conveyance on the reversion takes place behind the back of the tenant, it does not affect him until he has notice of it; but if he has knowledge from the assignee of the reversion, or has himself achieved the same information, it is a determination of the will…Every conveyance of the reversion is inconsistent with the will to occupy under him, but the tenant is not to be treated as a trespasser until he has had notice of the determination of the will – not formal notice, but knowledge of it: - as soon as he has that, he must know that he is not to occupy."
Alderson B and Martin B agreed.
"… but if he has knowledge from the assignee of the reversion. …"