Leslie Owen Gordon Plaintiff v Vincent Andrews Defendant [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Mitchell, J |
| Judgment Date | 30 October 2000 |
| Judgment citation (vLex) | [2000] ECSC J1030-3 |
| Court | High Court (Saint Vincent) |
| Date | 30 October 2000 |
| Docket Number | CIVIL SUIT NO.137 OF 1994 |
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO.137 OF 1994
This was a land dispute between two step-brothers. It concerned a property with a house on it at Arnos Vale in St Vincent.
The pleadings reveal that the Plaintiff claimed that in 1974 his mother had given him the property, and he had left the Defendant in charge of the property with the right to use it and to ensure the taxes were paid. Instead, he claimed, the Defendant had in 1978 obtained a fraudulent title to the property from the Defendant's father after the death in 1976 of the Plaintiff's mother. In preparing his Defence, The Defendant, however, did not rely on this deed. He must have realised that he could not rely on the fraudulent Grant of Letters of Administration and the fraudulent deed that proceeded from it. He pinned his hopes to have his title to the property confirmed, not based on his deed of 1978 but on the long period of time that the Plaintiff took to bring proceedings against him. His filedDefence was that the Plaintiff's title has been extinguished by the Limitation Act. He did not plead that he was a tenant at will or a squatter, but that he had supported his father and stepmother when the Plaintiff failed to do so, and that he had been in possession since 1978 paying the taxes for the property. The Plaintiff, by contrast, claimed in his Reply that the Defendant could not rely on the Limitation Act, as he was a trustee for the Plaintiff.
Giving evidence for the Plaintiff was the Plaintiff himself and his fiancée. They came from Brooklyn in New York, where they live, to give the evidence in this case. The Defendant gave evidence on his own behalf. A number of exhibits were put in evidence without objection. From the evidence I find the following facts. The Plaintiff was born at Barralouie in St Vincent on 2nd November 1939 to Emily Andrews or Gordon as she then was. Emily Andrews moved to Kingstown to find work after the Plaintiff was born. She had no other child. The Plaintiff was brought up by his grandmother with assistance from his mother. When the Plaintiff was 15 years of age, his mother took him to live with her in Kingstown and sent him to secretarial school. Emily Andrews worked with the Cotton Ginnery, which has now closed down. The Plaintiff soon left school and found himself a job. Emily Andrews married Albert Andrews around 1955 or 1957. Albert Andrews worked for a while as a Prison Officer, but lost his job. The Defendant was the son of Albert Andrews and was born in 1945. On 10 September 1960, Emily Andrews, the mother of the Plaintiff, purchased by registered deed from Theophilus Warner one and a half lots of land at Arnos Vale in St Vincent. It is not disputed that she subsequently purchased another half lot of land, bringing her holding to a total of two lots of land. Her husband had no interest of any kind in the property. The Plaintiff and the Defendant lived as boys with Albert and Emily Andrews at Emily Andrews' home at Arnos Vale. In 1960, the Plaintiff and his stepfather Albert Andrews emigrated together to find better opportunities in England. Before he left, Albert Andrews put his son, the Defendant, who was then about 15 years old to live elsewhere with his cousin. Emily Andrews was left alone in the house at Arnos Vale. Her son and her husband were living together in London, and foundwork in factories. Her son and her husband sent money back to her. After a year, Emily Andrews shut up the house at Arnos Vale and went to England to join her son and her husband. The property was left unoccupied while Emily and Albert Andrews were in England. The Plaintiff soon moved out of the family flat in London and left his mother and stepfather with privacy. Emily and Albert moved back to St Vincent after about 8 to 10 years of living and working in England. That would have been about 1970. They moved back into Emily Andrews' house at Arnos Vale. After they returned to St Vincent, Albert never found regular work. He was ill, and appears from the Defendant's evidence to have suffered from hypertension and diabetes. The Plaintiff continued to support Emily by sending back to St Vincent regular remittances of money. While his stepmother and father were alive, the Defendant never lived in the house in dispute; he became a taxi driver and lived on his own at various places about St Vincent. He began to have his own children.
The Plaintiff returned to St Vincent on a Christmas vacation in 1974. While he was in St Vincent, his mother, Emily Andrews, presented him with a deed of gift that she had previously that year had prepared. By this deed she transferred the fee simple in the property which she owned at Arnos Vale. The Plaintiff testified that his stepfather, Albert Andrews, was present at the dining table when his mother gave him the deed. Albert Andrews is not here to speak for himself. Before the Plaintiff left, he had a falling out with his stepfather Albert Andrews. The Plaintiff says it was over the way Albert Andrews treated the Plaintiff's mother. There was a suggestion from the defence that it might have been because of the deed. At the end of December, the Plaintiff left St Vincent and returned to England. I am satisfied that his stepfather Albert Andrews knew about the deed by this time. The Plaintiff's mother died two years later in 1976. The Plaintiff was not told by his stepfather or stepbrother of the death of his mother. He learned of the death some two months after she had been buried. The falling out in 1974 may explain why Albert Andrews did not telephone or write to his stepson about the death of his mother. Albert Andrews was also by this time a very sick man. He was shortly tolose both his legs to diabetes and hypertension, and he died not long after his wife, in 1979. The Plaintiff says he continued to send money back to his mother and stepfather after he went back to England in 1974. He claims that even after the death of his mother he continued occasionally to send money back to his sick stepfather. That may well have been so. Certainly, the Defendant never supported his father. He has no idea, as he testified, even of how his father supported himself.
The Plaintiff's next trip back to St Vincent was in 1989, 15 years after his mother had given him the property. What he was not aware of either before or during that visit was that on 5th June 1978, just before he died, Albert Andrews had taken out Letters of Administration to the Estate of his late wife. On 8th June 1978, Albert Andrews, acting as Administrator and beneficiary of the Estate, transferred the properties in dispute to the Defendant by way of a deed of gift. The Defendant got the lawyer to prepare both the application for the Letters of Administration and the subsequent deed of gift that was the objective of the Grant. He says that his father instructed him to bring the lawyer to him, but his father is not available to confirm this. What Albert Andrews did was quite wrong. He must have concealed the existence of the Plaintiff from the lawyer who prepared the application for Letters of Administration and the subsequent deed. This concealment is evidence that he knew that what he was doing was wrong. The lawyer would have advised him that if Emily had died intestate leaving a child, that child was also an heir to the land. Neither the Grant nor the deed makes any mention of the Plaintiff, and both documents wrongfully claim that Albert was the sole heir of Emily. What the Defendant did in taking title to his stepbrother's property was also quite wrong. Albert Andrews died on 10th August 1979. Though the Defendant disputes it, I have no doubt that the Plaintiff spoke to him and wrote to him after the death of Emily Andrews and after the death of Albert Andrews. I accept that he wrote the Defendant and told him that he had his permission to occupy the property until he needed it. But, the Defendant never replied to these two letters and concealed from the Plaintiff the fact that he had been given a deed to the Plaintiff's propertyby his father. I find as a fact that the Defendant had knowledge that his father had defrauded the estate of Emily Andrews. That is the only explanation for his behaviour whenever the Plaintiff attempted to approach him over his occupation of the property. Indeed, the Defendant admitted to organising the lawyer who prepared the application and the subsequent deed. The Defendant would have been actively involved in concealing the existence of the Plaintiff from the lawyers. The Defendant went into occupation under and by virtue of his fraudulent deed. It would not have been until his lawyers did the research after the writ in this action was served on him in 1994 that the Defendant would have realised that he could not rely on his deed. Indeed, during his crossexamination, he still could not believe that his deed was not good. It was his reliance on his deed that caused him to repulse the Plaintiff in 1989 and 1991. He had no thought of acquiring title by adverse possession until he received advice about the effect of the fraud of his father in 1978. Then, for the first time, he advanced a claim of exclusive and undisturbed possession adverse to the Plaintiff for a period in excess of 12 years.
Upto the time he gave his...
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