Gretel John v Shelly McIntosh Aka Shelly Garraway
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Byer, J. |
| Judgment Date | 17 September 2019 |
| Neutral Citation | VC 2019 HC 41 |
| Court | High Court (Saint Vincent) |
| Docket Number | SVGHCV2014/0099 |
| Date | 17 September 2019 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Byer, J.
SVGHCV2014/0099
Mr. Julian Jack for the Claimant
Ms. Anique Cummings with Mr. Jadric Cummings for the Defendant
Real Property - Title — Possession — Ownership — Deed of gift — Deed of rectification — Mortgage — Whether claimant or defendant was in fact and at law the owner as described in the deed of gift — Whether Limitation Act was applicable — Registration Act, s. 5 — Limitation Act, ss. 8(1), 17(1) and 19.
The case at bar concerns a disputed parcel of land being Lot No. 21 as described in the Schedule referred to in a Deed of Conveyance made on 15 March 1977 between a Conrad Lewis DeFreitas and Barclays Bank International Limited of one part and George Vincent Raymond John of the other under registration number: 699 of 1977 and as conveyed to the claimant by deed number 88 of 2013 and also Lot 21 A described in the Schedules to Deeds of conveyance bearing the registration numbers: 2612 of 2003 and 2618 of 2003 made between a Milton Kendall Ollivierre of one part and the defendant Shelly McIntosh of the other; and the said Shelly McIntosh of the one part and the National Commercial Bank (SVG) Ltd now called Bank of Saint Vincent and the Grenadines of the other part, respectively. The allegation of the parties is that the references in the various schedules relate to one and the same parcel of land situate at Sion Hill in the Parish of Saint George in the State of Saint Vincent and the Grenadines (hereinafter referred to as “the disputed land”).
Both the claimant and the defendant claim the land in dispute as their own by virtue of Deeds of Conveyance bearing registration numbers: 88 of 2013 and 2612 of 2003, respectively.
The claimant asserts that her father and predecessor in title to the disputed land purchased Lot 21 from a Conrad Lewis DeFreitas as Vendor with the consent and agreement of Barclays Bank International Limited (referred to herein as “the Bank”) by virtue of an Indenture bearing registration number: 688 of 1977. The said George John, during his lifetime mortgaged the disputed land with two banking institutions first, the Bank by a Memorandum of Deposit of Deeds bearing registration number: 690 of 1977 and second, Caribbean Banking Corporation Limited now called RBTT Bank Caribbean Limited by virtue of Indenture No: 1969 of 1995.
Lot 21 was re-conveyed to the said George John from Caribbean Banking Corporation Limited under Indenture No: 2703 of 1999.
George Vincent Raymond John died on 17 April 2017 but before his death gifted the disputed land to the claimant, his daughter, by a Deed of Gift which bears registration number: 88 of 2013.
The defendant on the contrary claims to have purchased the land in dispute together with an adjacent parcel Lot 22A from a Milton Kendall Ollivierre by virtue of a Deed of Conveyance dated 11 August 2003 and recorded in the Registry as Deed Number: 2612 of 2003. The said Milton Kendal Ollivierre is purported to have purchased the disputed land from Conrad Lewis DeFreitas now deceased and the Bank by virtue of Deed of Conveyance bearing registration number: 1771 of 1977.
The defendant is purported to have mortgaged the two parcels of lands being Lots 21A (the disputed land) and 22A in favour of National Commercial Bank (SVG) Limited now called Bank of Saint Vincent and the Grenadines Limited by virtue of an Indenture dated 11 August 2003, which bears registration number: 2618 of 2003.
On 18 May 2016, the claimant having discovered the anomaly with her land and the claim of the defendant to the same as owner filed a Fixed Date Claim Form as amended thereby seeking the following reliefs:
-
a. The cancellation of Deed Number: 2612 of 2003 dated 11 August 2003 and for an injunction to restrain the defendant, Shelly McIntosh also known as Shelly Garraway, from occupying and building upon the said parcel of land whether by herself, her servants and, or agents, from further encumbering same and from exercising any acts of ownership in respect of same.
-
b. A declaration that Mortgage Indenture Number 2618 of 2003 is null, void and of no effect.
-
c. Cancellation of Indenture of Mortgage dated 11 August 2003 and recorded at the Registry of Saint Vincent and the Grenadines as deed bearing registration number: 2618 of 2003.
-
d. A declaration that the claimant is the lawful fee simple owner of the parcel of land situate at Sion Hill in the Parish of Saint George in the State of Saint Vincent and the Grenadines and referred to in deed bearing registration number: 88 of 2013.
The defendant in reply filed a defence to the Amended Fixed Date Claim Form and Statement of Claim on 17 June 2016 contending that:-
-
a. she was in fact the owner of the land in dispute; and that she has a proper, valid and subsisting title to the land;
-
b. The claimant has no claim, title, interest in the land, whatsoever, by virtue of limitation and adverse possession as set out at Sections 17(1) and 19 of the Limitation Act CAP 129 of the Revised Laws of Saint Vincent and the Grenadines Edition 2009 and Section 8(1) of Part 1 of the Schedule of the Limitation Act;
-
c. By aggregation that she has been in exclusive, continuous and uninterrupted possession of the land in dispute since 1 September 1977 when her predecessor Milton Kendall Ollivierre came into possession of the land.
When one therefore looks at the issues that were raised on this case at bar, in this court's mind they are quite simple.
I therefore agree with the same as formulated by the claimant in their skeleton submissions to this court filed on 11 July 2019 as the following:
-
i. Whether the claimant or the defendant is in fact and at law the owner of Lot 21 as described in the Deed of Gift bearing registration number: 88 of 2013 or as referred to as Lot 21A in the Schedule to Indenture bearing registration number: 2612 of 2003.
-
ii. Whether the provision of Sections 17 (1), 19 and 8 (1) of Part 1 of the Schedule of the Limitation Act CAP 129 apply to the case at bar.
On this issue the submissions of the claimant are quite simple. Under the provisions of the Registration of Documents Act CAP 132 of the Laws of St Vincent and the Grenadines (hereinafter referred to as the Registration Act) it is clear that not only must every document that relates to land be registered but additionally that such registration results in the establishment of priority of that document over any later documents that may be registered. That is the first in time must prevail.
Therefore in the instant case, the claimant submitted, where both parties claim that their root of title emanated from the same vendor (Conrad DeFreitas) it therefore meant that the only differentiation would be as to the time of acquisition and therefore the application of the provisions of the Registration Act.
Thus the claimant submits, that her father having been the first to complete his title for Lot 21, (on the 15 th day of March 1977) some six months before the conveyance to the defendant's predecessor in title (on the 1 st day of September 1977) the later deed could not take effect and as such in law the claimant must be the only true owner who should and could be recognized.
On the contrary counsel for the defendant presented to this court a rather interesting argument, seeming to ignore the defendant's root of title upon which she now seeks to rely.
In answer to the contention of the claimant on this issue, the defendant's submission was that because the deed of the defendant's predecessor in title had not been specifically challenged by this claim, that in effect meant that the claimant had not made a claim to challenge the title of the defendant's predecessor in title and therefore for all intents and purposes the defendant's title to the land remained unchallenged.
In this court's mind the problem raised by this dispute is that this court must determine who is in fact the paper owner of the said Lot 21.
Upon this court assessing this matter it became clear to this court that first and foremost there needed to be express clarification as to whether Lot 21 referred to in the deed of the claimant's predecessor in title was in fact the same lot of land referred to as Lot 21A in the title of the defendant's predecessor in title.
It was on this basis that this court at the conclusion of this matter made a further order that a survey was to be conducted to establish that issue for the parties and the court.
The survey report provided by Mr. Ivo Providence filed on 30 August 2019 filed pursuant to the court's order, examined the deeds that provided the roots of title for the claimant and the defendant. Having done so, Mr. Providence discovered that there had in fact been some re-measuring of Lots 21 and 22 that were conveyed to the defendant's predecessor in title that resulted in the dimensions of Lots 21A being slightly less than Lot 21 as conveyed to the claimant. Therefore it was the finding of the surveyor that based on the later plan G40/76 that Lot21A in fact formed part of Lot 21 1.
The finding having been made, it was clear to this court that the claimant and defendant were therefore claiming the same parcel of land, Lot 21 although the size of the parcel to which the...
To continue reading
Request your trial