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Ezekiel v Fraser (2002)


The hearing was an appeal from a decision of Master Moncaster, giving summary judgment in favour of the Claimants.   The key issue on the appeal was which of successive bare possessors of land was entitled to possession as against the other.   The Claimants (who had been there first) relied only upon their claim to have title by virtue of prior possession - their alternative case based upon an alleged beneficial ownership of the land (which was registered) was not pursued at the summary judgment stage.   The Defendants (who had entered later) relied on the factual circumstances as having given them what the law regards as lawful possession.

A defendant to an ordinary action for trespass could not set up the defence of jus tertii where he had no right to possession. In this case, however, it was arguable that the defendant had such a right.


efendant's ('F') appeal from a decision of Master Moncaster by which he gave summary judgment for the claimant ('E') for possession of a residential property occupied by F. The registered proprietor of the property was a dissolved company, with the consequence that title to the property was vested in the Crown as bona vacantia. E alleged that the property had been held by the company upon trust for him. However, his claim for possession was based upon his alleged actual possession (but not occupation) of the property, which was derelict and uninhabitable, from 1983 until 1999. F went into occupation of the property in October 2000 and spent over #50,000 on making it habitable. E brought possession proceedings in April 2001. The Master upheld E's claim on the ground that: (i) his possession gave him a good title against the whole world except the true owner; and (ii) F was not entitled to rely upon jus tertii, ie the true ownership of the Crown, as a defence to E's claim. The Master granted F permission to appeal on the ground that an arguable point of law arose.


The judge allowed the appeal and held that the Defendants had at least an arguable case to have been in lawful possession such that the Claimants could no longer assert priority for their own possession (based in particular upon Browne v Dawson (1840) 12 A&E 624).

(1) After a review of the authorities, the court was satisfied that E was entitled to rely on his prior possession as entitling him to be restored to possession as against an intruder with no right to possession, and the jus tertii of the Crown, from whom F derived no title, was irrelevant. (2) However, E's claim fell properly to be treated as a claim for trespass. The evidence showed that E, with knowledge of F's occupation and expenditure, had stood by and made no claim for possession until the work was completed. It was arguable, in those circumstances, that F did in fact have a right to possession sufficient to defeat E's claim.

Appeal allowed.

Chancery Division
Judgment date
4 October 2002

LTL 31/10/2002 : [2002] NPC 132

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