Barker v O'Garro et Al; O'Garro et Al v Barker et Al
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Lanns, J |
| Judgment Date | 26 August 2015 |
| Neutral Citation | VC 2015 HC 65 |
| Docket Number | Claim No PT 49 of 2010; Claim No. 193 of 2011 |
| Court | High Court (Saint Vincent) |
| Date | 26 August 2015 |
High Court
Lanns, J. (Ag)
Claim No PT 49 of 2010; Claim No. 193 of 2011
Mr. Olin Dennie for the applicant/defendants
Ms Paula David for the respondents/claimants
Real Property - Possession — Ownership — Whether the paper title to the disputed land had been extinguished — Whether the right of recovery of possession had been statute barred by the alleged adverse possession where the person claiming adverse possession had been aware of the ownership of the paper owner by virtue of section 5 (3) of the Registration of Documents Act — Credibility of witnesses — Whether the use and occupation of the property was tantamount to adverse possession so as to confer on him a possessory title — Definition of adverse possession under section 2 of the Possessory Titles Act, Cap 328 — Permission — Rent — Family arrangement — Whether the occupation of the property was under a family arrangement — Doctrine of estoppel — Hearsay — Whether hearsay evidence was admissible — Death benefits, tools and other items — Whether the death benefits and property were taken and/or removed from the estate and converted for the use of the defendant — Finding that a declaration of possessory title could not be granted where the person claiming adverse possession was aware of the paper title — Declaration that the estate of the paper owner was entitled to the property — Finding that the proceeds of the death benefits; rents received from rental apartments; tools and equipment needed to be accounted for or returned — Claim for adverse possession dismissed.
The dispute in this matter is over a parcel of land situate at Buccament, in the parish of St Andrew, measuring 4,493 square feet, with buildings and erections thereon standing, (the disputed land). The dispute has given rise to two proceedings which have been consolidated. The first in time is Claim No. PT49 of 2010, (filed on the 10th December 2010) being the application of Lamond Barker (Lamond) for a declaration of possessory title to the disputed land. The application was made under the Possessory Titles Act, 2004.
Lamond's application states among other things a) that he is in possession of the disputed land; b) that the disputed land has a value of $343,930.00; c) that there is no claim affecting the land save and except the Claim made as of 18th August 2009 by Donna Barker (Donna); e) that there are no other persons claiming to be the owner of the land; f) that his predecessor in title Leonard Barker, deceased, (Leonard) had been in exclusive and undisturbed possession of the land for over twelve years; g) that the paper title owner of the disputed land was Leonard; h) that he (Lamond), claims to be the owner in his own right; i) that immediately before adverse possession began to run in his favour, the disputed land was registered in the name of Leonard; j) that he has not withheld any fact or information concerning the disputed land, and that he has truly and honestly represented the truth concerning the disputed land.
The application was supported by the Affidavits of Lamond, David Abraham (David) and Harold Fraser (Harold). I will revert to those affidavits below.
Lamond's application was met with a claim in opposition by Mary O'Garro, (Mary) the current and true paper title owner of the disputed land.
In her claim in opposition, Mary states, among other things a) that she is the owner of the disputed land; b) that her husband St Clair O'Garro, deceased, (St Clair), was the predecessor in title of Mary; c) that St Clair purchased the disputed land from one, Amelia R. Bowen of Buccament Bay in 1971; d) that the transaction is evidenced by deed of conveyance number 1412 of 1971 [Copy of which is attached]; e) the disputed land was never owned by Leonard as Lamond states at paragraph 5 of his application; f) that Leonard was the father of Lamond and St Clair; g) that Lamond is perfectly aware that the disputed land was never owned by Leonard; h) that Lamond was for many years the caretaker of the disputed land on behalf of his brother St Clair; that he was entrusted with the care of the disputed land by St Clair up until as late as 2008 shortly before the death of St Clair.
Mary sets out and particularize the facts pertaining to a business relationship between St Clair and Lamond, including the running of a shop, (that used to be run by Leonard), and caretaking responsibilities. She denied the allegation in paragraph 5 of Lamond's affidavit that during his father's lifetime, he built a dwelling house on the disputed land, and she gave her own version of events, supported by documentary evidence. She has also denied the allegation that Lamond had occupied the disputed land from 1970, and explained Lamond's dealings with the shop and the disputed land including the building of illegal construction on the land. She averred that Lamond did not reside on the disputed land until 1994, and she explained the circumstances of him living there, particularly, marital problems. She stressed that Lamond has never been in undisturbed possession of the disputed land, but occupied it with the permission of St Clair. He first commenced illegal building activities in 2002, and St Clair forgave him and instructed him to desist from such illegal construction. By letter dated the 13th August 2009, Donna, in her capacity as Administratrix of the Estate of St Clair, gave Lamond notice to quit and deliver up possession of the disputed land. But instead of quitting, Lamond has made a baseless claim for a possessory title to the disputed land. Mary pointed out that in breach of his obligations under the Act; Lamond has never served her notice of his intention to make an application for a possessory title. Mary concluded her claim in opposition by stating that the application made by Lamond is entirely without merit, and she urged the court to dismiss it with costs.
The second proceeding pending before the court is a fixed date claim filed on the 11th May 2011 being Claim No 193 of 2011. That claim was brought by Mary acting by her lawful attorney on record, Donna, and her daughter Donna in her capacity as administratrix of the estate of St Clair, wherein they sought the following reliefs: 1) recovery of possession of the disputed land; 2) a declaration that Mary is the lawful owner of the disputed land; 3) recovery of possession or damages in lieu of recovery with respect to a large amount of chattels consisting mostly of construction tools, household furnishings, and fixtures; 4) an account of rents received by Lamond in respect of the disputed land; and recovery of the rent received; 5) recovery of $5000.00 being a death benefit collected by Lamond from the Marriaqua United Friendly Society with respect to the death of St Clair; 6) mesne profits for wrongful occupation of the disputed land from 1st October 2011; 7) interest at the statutory rate of 6% per annum; and 8) costs.
In summary, Mary and Donna's pleaded case is that Mary is by virtue of a deed of assent registered as No 3540 of 2010, the owner in fee simple absolute of the disputed land. A copy of the deed of assent marked “M03” is appended to the statement of claim. Leonard and St Clair had occupied the land for many years before St Clair purchased it. Leonard operated a shop on the disputed land. He fell on hard times, and in order to assist him, St Clair purchased the disputed land so that Leonard could have a place to live and a means of earning a living.
When Leonard became too old and ill to continue running the shop, Lamond and Melvin sought permission of St Clair to carry on the business of the shop. St Clair agreed and contributed towards the business of the shop by purchasing stock, paying utility bills and purchasing equipment for the shop.
St Clair made improvements to the land after he purchased it. He first built a small one room apartment for his father. In 1992, he constructed a two bedroom apartment above the shop. At the same time, he commenced construction of a residential building on a parcel of land near to the disputed land, which he also owned. St Clair supervised both constructions while he was in St Vincent, and when he was not in St Vincent, he entrusted supervision of the construction to Lamond. He sent the first large amounts of money to facilitate the construction project. On his several visits to St Vincent, he himself made direct payments towards the construction projects, to Lamond. Copies of documents in proof of payments were annexed to the statement of claim. Lamond operated the shop on the disputed land with the permission of St Clair who also financed the operation of the shop. In 2005, St Clair sent Lamond a drinks cooler for the shop. It is still being used in the shop. The receipt is appended. Lamond accounted (though imperfectly) to St Clair for the shop by handing over receipts for purchases made and other documents relating to the operation of the shop.
Mary and Donna repeated the facts pertaining to the illegal construction works, and they made allegations of dishonesty of Lamond regarding money and materials for the construction of the apartment above the shop and St Clair's residential building.
St Clair died on 18th October 2008, and in June 2009, Donna and Mary came to St Vincent to administer St Clair's estate, they discovered that Lamond had removed several items from St Clair's residential property. A list of the items allegedly removed are appended to the statement of claim. Mary and Donna spoke to Lamond about the items and demanded their return. His initial response was “I don't have nothing that belongs to you.” However, when they persisted, Lamond agreed to meet them on a certain date to return the items....
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