[1] Luella Mitchell (Administratrix of the Estate of Cornelius Jones Deceased) [2] Luella Mitchell (Beneficiary of the Estate of Cornelius Jones Deceased) [3] Reginald Jones [4] Thelma Jones (Grantees of the Estate of Cornelius Jones Deceased) Appellants/Defendants v Maurice Jones (Beneficiary of the Estate of Cornelius Jones) Respondent/Claimant [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: GEORGE-CREQUE, J.A.,EDWARDS, J.A.,Janice George-Creque,Justice of Appeal,Ola Mae Edwards,Davidson Baptiste
• Judgment Date: 31 May 2010
• Judgment citation (vLex): [2010] ECSC J0531-6
• Court: Court of Appeal (Saint Vincent)
• Docket Number: HCVAP 2006/016
• Date: 31 May 2010

[2010] ECSC J0531-6

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice George-Creque Justice of Appeal

The Hon. Mr. Davidson Baptiste Justice of Appeal

HCVAP 2006/016

Between:

[1] Luella Mitchell

(Administratrix of the Estate of Cornelius Jones Deceased)

[2] Luella Mitchell

(Beneficiary of the Estate of Cornelius Jones Deceased)

[3] Reginald Jones

[4] Thelma Jones

(Grantees of the Estate of Cornelius Jones Deceased)

Appellants/Defendants

and

Maurice Jones

(Beneficiary of the Estate of Cornelius Jones)

Respondent/Claimant

Appearances:

Mr. Emery Robertson for Appellants

Mr. Joseph Delves for the Respondent

Civil Appeal – Land Law – Administration of Estates – locus standi – intestacy – interest of legitimate child – interest of illegitimate child – adverse possession – limitation – findings of fact by trial judge – credibility of witnesses – function of the appellate court – Intestates Estates Act No. 24 of 1947 – Administration of Estates Act Cap. 377

The third named appellant, Reginald Jones, is the illegitimate son of Cornelius Jones ("the Deceased"), who died intestate in 1959. Carlton Jones and Andrew Jones were the legitimate sons of the Deceased. Carlton died in 1991 and Andrew died in 2002. The respondent, Maurice Jones, is the grandson of the Deceased and the illegitimate son of Carlton Jones.

The Deceased was recorded as the lawful owner of 2 acres of land in Union Island ("the Land"). The Deceased's wife and legitimate sons (Carlton Jones and Andrew Jones) died intestate without administering the Deceased's estate. In 1994, the Deceased's sister, Luella Mitchell, obtained the Grant of Letters of Administration on the ground that she was the only person entitled to the Deceased's estate. By Deed of Assent, she conveyed the Land which comprised the Deceased's estate to Reginald Jones.

Maurice Jones commenced proceedings in the court below against Luella Mitchell and Reginald Jones in which he claimed to be a beneficial owner of the Land. He sought a declaration to that effect, revocation of the grant of Letters of Administration and cancellation of the Deed of Assent. Reginald Jones and his wife, Thelma Jones filed a defence in which they denied knowledge of the grant of Letters of Administration to Luella Mitchell or her conveyance to them of the Land by Deed of Assent. Reginald Jones raised the defence of limitation and claimed to be in adverse possession of the Land as from 1969.

The learned judge found Maurice Jones to be a credible witness but disbelieved the evidence of Reginald Jones, having regard, among other things, to his conflicting evidence regarding the date he went into possession of the Land. The grant of Letters of Administration were accordingly revoked, the Deed of Assent cancelled and Maurice Jones declared a beneficial owner of the Land. Reginald and Thelma Jones appealed on the grounds, among other things, that the learned judge erred in: (i) failing to make a finding as to who was in actual possession of the Deceased's estate; (ii) declaring that Maurice Jones was a beneficiary of the estate when the issue was not before her; (iii) finding that Reginald Jones was neither in possession nor had the animus possidendi, which was against the weight of the evidence; and (iv) holding that Reginald Jones had failed to prove that he was in adverse possession for a period of 12 years before the commencement of the action or at any time. On appeal, Reginald Jones also sought to raise the issue of Maurice Jones' locus standi to institute the claim.

Held: dismissing the appeal and ordering the appellants, Reginald and Thelma Jones, to pay the respondent's costs in the appeal fixed at two thirds of the sum awarded in the court below (Edwards J.A. dissenting):

• 1. On the application of the then governing law, the Intestates Estates Act 1947, Carlton Jones, who was a legitimate son the Deceased, was entitled to a two-third share in the Deceased's estate. Section 61 of the Administration of Estates Act1, which is applicable to intestates dying after 1 ^st January 1970, recognises the entitlement of a child born out of wedlock to inherit from its parents in the same manner and to the same extent as a child born in wedlock. Reginald Jones could not claim the benefit of this provision as the Deceased died in 1959. However, Maurice Jones, whose father, Carlton, died in 1991, obtained the benefit of this provision and was therefore entitled to claim a beneficial interest in the Deceased's estate. In the circumstances, Maurice Jones had the required locus standi to institute the proceedings to

  challenge the grant of the Letters of Administration and the subsequent vesting of the Land in Reginald Jones.

• 2. Maurice Jones, who was found by the learned judge to be a beneficial owner of the Land, would be in the position of a paper owner and would be presumed or deemed to be in possession of the Land unless his right to possession is lost to the adverse possessor. It was not therefore necessary for the learned judge to make a finding as to who was in "actual possession".

  Celestine v Baptiste Grenada HCVAP 2008/011, followed.

• 3. Having regard to the nature of the relief sought by Maurice Jones and to the fact that a determination on the question of adverse possession necessarily involved a consideration of the paper owner's identity, the learned judge properly ruled that Maurice Jones was a beneficiary of the Deceased's estate.

• 4. The learned judge correctly held that adverse possession is established where it is proven to the satisfaction of the court that the adverse possessor was in actual possession of the land for the required period and had the necessary intention to possess – the animus possidendi.

• 5. Having regard to the learned judge's findings on the credibility of the evidence of Reginald Jones and Maurice Jones and to her reasons for so finding, it was properly open to her to find that Reginald Jones had failed to prove both elements necessary to establish adverse possession. No cogent reason was advanced by Reginald Jones for disturbing the learned judge's finding. It is not the function of an appellate court to impose its view for that of the trial judge where the credibility of one witness as against the other is critical to the determination of a factual dispute. The finding of the learned judge on this issue must accordingly be upheld.

  Watt or Thomas v Thomas [1947] AC 484 , applied. Grenada Electricity Services Limited v Isaac Peters Grenada Civil Appeal No. 10 of 2002, Elena Collongues v Andrew Lych and another Territory of the Virgin Islands HCVAP 2007/001 and The Epicurean Limited v Madeline Taylor Antigua and Barbuda Civil Appeal No. 4 of 2003, followed.

GEORGE-CREQUE, J.A.

1 This appeal arises from the decision of the learned judge in which she granted to the respondent, Maurice Jones (being the claimant below), a declaration that he is a beneficial owner of land situate at Donaldson, Union Island measuring approximately 2 acres ("the Land"). The learned judge also granted to the respondent the other relief prayed for in his claim, namely:

• (1) the revocation of the grant of Letters of Administration issued to Luella Mitchell in the estate of Cornelius Jones ("the Deceased"); and

• (2) the cancellation of a Deed of Assent numbered 3898 dated 8 ^th December 1994, by which the said Luella Mitchell, as administratrix of the estate of the Deceased, conveyed the Land to the appellants, (Reginald Jones and his wife, Thelma Jones), as Grantees of the Deceased's estate.

2 In so doing, the learned judge rejected the appellants' defence which in effect pleaded that Maurice Jones' claim was statute barred by virtue of section 17 of the Limitation Act2 and his right extinguished by virtue of their alleged adverse possession of the Land as from 1959.

3 Reginald Jones and his wife, Thelma Jones, appealed the decision of the trial judge. Luella Mitchell, even though she is described as an appellant on this appeal, took no part whatsoever in the proceedings below. She did not acknowledge service of the claim nor did she defend it. It must be taken that judgment as against Luella Mitchell was by default. Luella Mitchell has not appealed. Accordingly, she is not a party to this appeal and, to that extent, the headings as it relates to this appeal describing her as an appellant, is misleading. The issues are joined only as between the appellants, Reginald and Thelma Jones, on the one hand, and the respondent, Maurice Jones, on the other.

4 Before setting out the issues raised on this appeal, it is useful to summarize the background so as to place this matter into proper context:

• (1) Maurice Jones is the grandson of the Deceased. Luella Mitchell, the administratrix, is the sister of the Deceased.

• (2) The Deceased was married to one, Caroline Jones, and they had two children namely, Carlton Jones and Andrew Jones. The Deceased also had another son namely, Reginald Jones (one of the appellants). It is accepted that Reginald Jones is the illegitimate son of the Deceased and that Maurice Jones is the illegitimate son of Carlton Jones.

• (3) The Deceased died intestate on 27 ^th April 1955. He was then survived by his widow, Caroline, and their two lawful sons, Carlton and Andrew, as well as his illegitimate son, Reginald. At the time of death, the Deceased was recorded as the owner of the Land. This comprised his estate.

• (4) Caroline Jones subsequently died on 24 ^th July 1961, without administering the estate of the Deceased.

• (5) Based on Maurice Jones' pleaded case, his father, Carlton Jones, died in 1991, and his uncle, Andrew Jones, in 2002. Neither son obtained a grant for the administration of the Deceased's estate during their lifetime.

• (6) The estate of the Deceased remained un-administered until 1994 when Luella Mitchell obtained the grant of Letters of...