David Sampson (Intended Administrator of the Estate of Elisha Sampson, deceased) Appellant v David Adolphus Mckenzie Respondent [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: RAWLINS, J.A.,Justice of Appeal,Chief Justice [Ag.],Hugh A. Rawlins,Brian Alleyne, SC,Denys Barrow, SC
• Judgment Date: 05 December 2005
• Judgment citation (vLex): [2005] ECSC J1205-2
• Court: Court of Appeal (Saint Vincent)
• Docket Number: CIVIL APPEAL NO.6 OF 2005
• Date: 05 December 2005

[2005] ECSC J1205-2

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Brian Alleyne, SC Chief Justice [Ag.]

The Hon. Mr. Denys Barrow, SC Justice of Appeal

The Hon. Mr. Hugh A. Rawlins Justice of Appeal

CIVIL APPEAL NO.6 OF 2005

Between:

David Sampson (Intended Administrator of the Estate of Elisha Sampson, deceased)

Appellant

and

David Adolphus Mckenzie

Respondent

Appearances:

Mr. Richard Williams for the Appellant

Mr. Stanley John for the Respondent

RAWLINS, J.A.

1 This is an appeal against a Judgment in which the trial Judge made a paternity Order in favour of the respondent, David McKenzie. In that Order, the learned Judge declared that he was satisfied on a balance of probabilities that McKenzie had made out his case:

"that the relation of father and child exists between the late Elisha Sampson and the claimant David Adolphus McKenzie pursuant to the provisions of Sections 10(1)(b) and 10(2) respectively of the Status of Children Act, Cap. 180 of the Laws of Saint Vincent and the Grenadines, in that paternity of the said Elisha Sampson had beenadmitted by him and/or established during his lifetime, and that the requirements of section 7(1)(b) of the Status of Children Act, Cap. 180 of the Laws of Saint Vincent and the Grenadines have been satisfied and complied with, and that the claimant's statements of case and affidavits and exhibits in support have met the requirements of Section 8 or otherwise; the defendant's case is hereby dismissed, and the defendant is to pay the claimant's costs in the sum of $8,000.00."

2 Elisha Sampson ("the deceased") died on 22^nd August 1996. The appellant, David Sampson, who was the defendant in the paternity claim, is his Nephew and the Intended Administrator of his estate. His appeal seeks to set aside the foregoing Order, to have McKenzie's case dismissed and to have Judgment entered for the appellant.

3 The appeal states 4 grounds. The first is that the learned Judge erred in finding that McKenzie made out his case for the declaration of paternity. The second is that the Judge erred in finding that the deceased admitted his paternity of McKenzie or that paternity was established during the lifetime of Sampson. The third is that the Judge erred in holding that McKenzie's statement of case, affidavits and exhibits in support met the requirements of proof of paternity undersection 8 of the Status of Children Act, Cap. 180 of the Laws of Saint Vincent and the Grenadines (hereinafter referred to as "the Act"). The fourth is that the Judge erred in awarding $8,000.00 costs against him (David Sampson) personally, rather than against the estate of Elisha Sampson. The merits of the appeal will be considered against a detailed background of the appeal, in order to put it into its proper perspective.

Background

4 The respondents instituted a Claim against David Sampson in his capacity of Intended Administrator of the estate of the deceased. They claim that they were the children of the deceased and that they are entitled to share in his estate. The deceased owned a liquor and grocery shop, as well as lands and a dwellinghouse. The second named respondent, Ms. James, withdrew her claim for religious reasons. McKenzie pursued his case to trial.

5 When the trial commenced, Counsel for David Sampson made preliminary submissions. The substantial submission was that the affidavits that McKenzie filed did not disclose sufficient evidence to meet the standard of proof by which he had to prove paternity. The learned Judge upheld the submission. He held that McKenzie's statement of case and affidavits fell short of the requirements of section 8 or otherwise that would have enabled him to make the necessary declaration of paternity for the purpose of sharing in the estate of the deceased. The Judge therefore dismissed the claim. He however stated the view that McKenzie could have proceeded with his claim for a declaration of paternity simpliciter, which would not have entitled him to share in the estate. Since Counsel for David Sampson had no difficulty with this, with his concurrence, the Judge made a declaration of paternity simpliciter in favour of McKenzie, who however appealed the Judge's ruling.

6 The Judgment of this Court in that appeal,David Adolphus McKenzie v David Sampson (Intended Administrator of the Estate of Elisha Sampson), Civil Appeal No. 12 of 2003, was delivered by Saunders JA, as he then was. In effect, he interpreted the relevant sections of the Act that are concerned with paternity Orders. These are sections 10, 7 and 8.

7 Section 10 of the Act states:

"(1) Any person who —

• (a) being a woman, alleges that any named person is the father of her child;

• (b) alleges that the relationship of father and child exists between himself and any other person; or

• (c) being a person having a proper interest, wishes to have it determined whether the relationship of father and child exists between the two named persons, may apply, in such manner as may be prescribed by rules of court, to the High Court for a declaration of paternity, and, if it is proved to the satisfaction of the Court that the relationship exists, the Court may make adeclaration of paternity whether or not the father or the child or both of them are living or dead.

(2) Where a declaration of paternity under subsection (1) is made after the death of the father or of the child, the Court may, at the same or any subsequent time, make a declaration determining for the purposes of section 7(1)(b), whether any of the requirements of that paragraph have been satisfied."

8 Section 7 of the Act states:

"(1) The relationship of father and child, and any other relationship traced in any degree through that relationship, shall, for any purpose related to succession to property which devolves after the commencement of this Act or to the construction of any will or other testamentary disposition or of any instrument creating a trust operating after such commencement, be recognised only if —

• (a) the father and the mother of the child were married to each other at the time of its conception or at any time subsequent thereto; or

• (b) the paternity has been admitted by, or established during the lifetime of, the father (whether by one or more of the types of evidence specified by section 8 or otherwise):

Provided that, if the purpose aforesaid is for the benefit of the father, there shall be the additional requirement that paternity should have been so admitted or established during the lifetime of the child or during the period when the child was conceived."

(2) In any case where by reason of subsection (1) the relationship of father and child is not recognized for certain purposes at the time the child is born, the occurrence of any such event or conduct which enables the relationship and any other relationship traced in any degree through it, to be recognized shall not affect any estate, right or interest in any real or personal property to which any person has become absolutely entitled, whether beneficially or otherwise, before the act event or conduct occurred."

9 Section 8 of the Act states:

"(1) If, pursuant to the provisions contained in the Registration of Births and Deaths Act, or under any other law, the name of the father of the child to whom the entry relates has been entered in the register of births (whether before or after the commencement of this Act), a certified copy of the entry made or given in accordance with any provision made by or under that Act shall beprima facie evidence that the person named as the father is the father of the child.

(2) The entry in the register kept by any minister of the Christian religion before the 29^th June, 1867, and all copies and extracts therefrom duly certified as provided in the Registration of Births and Deaths Act, showing the name of the father of the child to whom the entry relates, shall be prima facie evidence that the person named as the father is the father of the child.

(3) Any instrument signed by the mother of a child and by any person acknowledging that he is the father of the child shall, if executed as a deed by each of those persons in the presence of a notary public, commissioner for oaths, justice of the peace, registrar of the courts, registered medical practitioner, marriage officer, midwife...