Ashford Cole Plaintiff v Dorothy Rey Defendant Albertina John First Added Defendant Development Corporation Second Added Defendant [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: Mitchell J
• Judgment Date: 10 June 1997
• Judgment citation (vLex): [1997] ECSC J0610-2
• Docket Number: SUIT NO.: 318 OF 1993
• Court: High Court (Saint Vincent)
• Date: 10 June 1997

[1997] ECSC J0610-2

IN THE HIGH COURT OF JUSTICE

EASTERN CARIBBEAN SUPREME COURT

Mitchell J

SUIT NO.: 318 OF 1993

Between:

Ashford Cole

Plaintiff

and

Dorothy Rey

Defendant

Albertina John

First Added Defendant

Development Corporation

Second Added Defendant

1 This case was commenced by a generally endorsed Writ of Summons issued out of the Supreme Court of St Vincent and the Grenadines on 16th July, 1993, seeking: (i) a declaration as to the intent of the deceased Enid Beatrice John (hereinafter Mrs John), the maker of two Deeds of Conveyance in favour of the Ashford Cole (hereinafter the Plaintiff, (ii) rectification of the Deeds, (iii) alternatively, a declaration as to equitable estoppel, (iv) an order as to the Plaintiff's entitlement to the fee simple interest in the lands in question, and (v) an injunction against the Defendant, Mrs Rey.

2 By a Statement of Claim, served and filed by consent out of time on 1st February 1994, the Plaintiff claims:

• (a) that the eighty-one (81) year old deceased Mrs John lived alone and near him at Arnos Vale in St Vincent in the year 1988;

• (b) that a close relationship developed between him and Mrs John, and in 1989 she gave him the first parcel of land, and, subsequently, a small additional piece, on which to place his garage/workshop;

• (c) and that, accordingly, the Plaintiff constructed his garage, borrowing money from a bank to do so. He claims the remedies set out above.

3 By a Defence and Counterclaim served and filed on 24th May, 1994 the Defendant:

• (a) denies that the deceased Mrs John was fully possessed of all of her senses at the material time;

• (b) denies that the deceased Mrs John ever intended to give the Plaintiff the lands in question and asserts that she on intended to give the Plaintiff the temporary use of the lands;

• (c) asserts that in 1990 before her death Mrs John had a solicitor write the Plaintiff denying that she had ever intended to make a gift of the land; and

• (d) that, in any event, the issue of whether the Deeds passed any beneficial interest in the lands in question to the Plaintiff was determined in favour of the Defendant by a judgment of the High Court of 26th June 1 992 in Suit 483 of 1991; and

• (e) alternatively, that the Deeds contain no error that entitle the Plaintiff to rectification or any other remedy. By the Counterclaim the Defendant claims:

• (f) that on 5th June 1990 Mrs John made her last Will giving the lands mentioned in the second of the two Deeds to her three (3) great grand children;

• (g) that following the death of Mrs John, the Defendant as Executrix vested the land in herself as trustee under the trusts of the Will;

• (h) further, that following the death of Mrs John the Plaintiff wrongfully entered upon additional portions of Mrs John's property;

• (i) and, the Defendant seeks recovery of possession, mesne profits, damages for trespass, and costs.

4 By a Reply and Defence to Counterclaim served and filed on 27th September 1994 the Plaintiff claims:

• (a) that the deceased Mrs John did know what she was doing when she made the Deeds, as she voluntarily went to the Registry of Deeds in Kingstown and acknowledged before an officer there that both conveyances were her own act and deed. Further,

• (b) the Plaintiff does not admit that the deceased Mrs John made any Will in which she knowingly bequeathed the said lands to her three (3) great grandchildren. He asserts, rather, that the Defendant Mrs Rey together with one Mrs Frank and a Solicitor, Mr Arthur Williams, went to the deceased Mrs John before she died. They requested her to sign a paper to make sure the remainder of the land was not conveyedto the Plaintiff but went to the great grandchildren. The Plaintiff denies:

• (c) that he has entered upon any additional lands, and gays that he has at all times kept within the boundaries of the land conveyed to him by Mrs John.

5 On 28th October 1994 Joseph J made an order in this case under the usual Summons for Directions ordering an exchange of lists and setting three days for the trial of the matter. The matter has been ready for hearing since 24th March, 1995. The order made by Joseph J is significant in view of paragraph 11 of the Defence which raises an issue of estoppel by matter of record. The claim of the Defendant at paragraph 11 is that:

"… the Defendant contends that the issue of whether the said deeds passed any beneficial interest in the said property to the Plaintiff was determined in favour of the Defendant against the Plaintiff by the judgment of the High Court dated 26th June 1992 in Civil Suit No 483 of 1991. The said judgment was final and conclusive and as a matter of law bars the Plaintiff's claim to a beneficial interest in the said property by virtue of the said deeds".

6 This contention was raisedin limine by Counsel for the Defendant. It needed to be disposed of first, as, if it had merit, there was no point in wasting time determining all over again the same issue previously determined by this Court. I had read the Judgment in question of Joseph J. It appeared that by suit 483/91 of 1991 the Defendant in this case, Dorothy Rey, by an Originating Summons filed on 15th October 1991 sought from the High Court in St. Vincent orders that

• (a) the documents made the 14th day of June 1989 and the 14th day of March 1990 between the deceased Mrs Enid John and the Plaintiff Ashford Cole and purporting to be Deeds of Gift are not Deeds, and

• (b) an order declaring the Donee's title and interest as created by the documents in question, and

• (c) an order determining the Defendant's Mrs Rey's interest in the property on the death of Mrs John.

7 Joseph J in a long and thoughtful judgment, that must reflect all the law and the multitude of issues that were canvassed before her on that application, drew attention to the failure of the Deeds to comply with section 7 of theRegistration of Documents Act 1937, No. 30 of 1937, which requires that a Deed must be sealed. It was evident that although both Deeds say they were "signed sealed and delivered" by the donee, the deceased Mrs John, yet there was no red wafer or seal, as is usual, glued on to the paper next to the signature of Mrs John. After reviewing the authorities of TCB Ltd v Gray (1986) 1 All E R 587, and First National Securities Ltd v Jones (1978) 2 All E R 221, she ruled that the absence of the seal cannot be relied on by the Defendant Mrs Rey, and she held that the documents are Deeds.

8 Joseph J then considered the more contentious question before her of the construction of the Deeds. The question was whether the Deeds passed the estate in the lands to the donee for his use and benefit, or whether, as must have been argued before her, the estate was to be held by the donor (the deceased Mrs John) for the use and benefit of the donee (the Plaintiff in this case, Mr Cole). The Deeds stated in several places that the consideration described had passed to the Donor Mrs John from the Donee Mr Cole. The Deeds also stated in the time-honoured antiquated language beloved by conveyancers, that "… the Donor doth hereby Give Grant and Convey unto the said Donee and his heirs …". So that, it was clear from the contents of the Deeds that the donor, the deceased Mrs John, was attempting by these her Deeds to make outright gifts of the two pieces of land to the Plaintiff, Mr Cole. Yet, the draughtsman, inexplicably, had the habendum clauses in both Deeds conclude with the words that the donee Mr Cole is given the lands "… to have and to hold the same unto and to the use of theDonor her heirs and assigns forever". The habendum clause is a very important clause in a conveyance, as it is the clause that actually conveys the interest being dealt with by the Deed in question. From the contents and tenor of the Deeds, the correct words that clearly should have been used by the draughtsman, to be consistent with the remainder of the Deeds and with the intention of Mrs John, were the words "… Donor his …". These words would have had the effect of having the Deeds vest title in the Plaintiff Mr Cole.

9 The Defendant in those proceedings 483/91 (the Plaintiff in this case, Mr Cole) had, in reply to Mrs Rey's Summons, filed an application before Joseph J seeking rectification of the Deeds. He had asked that the habendum clauses in both Deeds be corrected to state "… unto the use and to the use of theDonee his heirs and assigns forever". Joseph J considered Section 1 of the Statute of Uses of the United Kingdom, as applied to St Vincent by virtue of Section 5 of the Application of English Law Act 1989. No. 36 of 1989, in dealing with these vexing errors made by the Solicitor who drafted both Deeds in question. She considered Halsbury's Laws of England. 4th Edition. Vol. 39, page 235, para 334, note 7 Leggott v Barrett (1880) 15 Ch D. 305 and Christian v Mitchell-Lee (1969) 13 WIR. 392. She also considered Halsbury's Laws of England. 3rd Edition. Vol 11, page 390, para 638, and Snell's Principles of Equity. 28th Edition, page 187. She concluded that, although the donor Mrs John may have intended by her Deeds to convey the properties to the donee, Mr Cole, the words of the habendum were, as a technical matter of conveyancing law, ineffectual to pass the property to him, and no property or title passed to him by the Deeds.

10 She next considered whether she could order rectification of the Deeds as requested by Mr Cole to give effect to the alleged intention of Mrs John. She cited fromAtkins Court Forms. 2nd Edition, Vol. 18, page 223, para 8 dealing with the correct procedure in rectification actions. She concluded that rectification could be obtained only in an action begun on a Writ of Summons, and tried on evidence subject to testing by cross-examination. And, the applications before her, as we have seen, were Originating Summonses, supported by a variety of affidavits...