Re Ollivierre Theresa
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Henry, J. |
| Judgment Date | 04 June 2018 |
| Neutral Citation | VC 2018 HC 32 |
| Court | High Court (Saint Vincent and the Grenadines) |
| Date | 04 June 2018 |
| Docket Number | SVGHPT2017/0051 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Henry, J.
SVGHPT2017/0051
IN THE MATTER OF THE POSSESSORY TITLES ACT 2004
AND
IN THE MATTER OF ALL THAT LOT PIECE OR PARCEL OF LAND SITUATE BELMONT IN THE STATE OF SAINT VINCENT AND THE GRENADINES ADMEASURING 2,716 SQUARE FEET SHOWN ON SURVEY PLAN G62/141 LODGED AT THE LANDS AND SURVEY DEPARTMENT ON THE 13TH DAY OF OCTOBER 2017
AND
IN THE MATTER OF AN APPLICATION BY THERESA OLLIVIERRE FOR A DECLARATION OF POSSESSORY TITLE
Mr. Stephen Huggins of counsel for the applicant.
Real property - Possessory title — Whether declaration of possessory title should be issued to the applicant.
Ms. Theresa Ollivierre has applied 1 for a declaration of possessory title to a parcel of
land situated at Belmont in the Parish of Saint George in the State of Saint Vincent and the Grenadines. It is approximately 2,717 sq. ft. The application was unopposed.Ms. Ollivierre provided affidavit testimony as did her witnesses Agnes Samuel and Cassandra Mc Donald. Ms. Mc Donald claimed to be Frank Ollivierre's niece. Ms. Ollivierre explained that she has enjoyed possession for the past 5 years while her godmother Eileen Ollivierre did so for many years immediately before her. She claimed that by virtue of their aggregate periods of possession, that she has enjoyed exclusive and undisturbed possession of the land for the period of over 20 years, and is entitled to a declaration of possessory title of the subject land.
The sole issue is whether a declaration of possessory title should be granted to Theresa Ollivierre.
Ms. Ollivierre explained that the subject land contains a house which was built by her uncle Frank Ollivierre and his wife Eileen Ollivierre who was her godmother. She produced a survey plan depicting the land. Ms. Ollivierre deposed that Mr. and Mrs. Ollivierre are deceased, the husband having preceded his wife in death. She produced two death certificates. The first reflected that Frank Ollivierre died on 22 nd July 1996. The second registered the death of one ‘Adina Ollivierre’, the sad event having transpired on 25 th August 2012.
Ms. Ollivierre claimed 2 that Eileen Ollivierre is also known as Adina Ollivierre. She exhibited an affidavit sworn to this effect by Agnes Leozone Samuel, on 23 rd March 2018. The affidavit was not headed as one of the pleadings in this cause and it was not filed as such 3. In it, Ms. Samuel averred that she is 76 years old and was friends with Eileen Ollivierre since around 1950. She indicated too that Eileen Ollivierre is the godmother of her fifth son. She deposed that Mrs.
Ollivierre's name was registered in the Register of Births and Deaths as Adina Ollivierre. No official birth record was produced. Ms. Samuel explained however that her friend was always known as Eileen Ollivierre throughout her lifetime and that was the name she was called in her neighbourhood.Agnes Samuel averred further that on the registration of Frank Ollivierre's death, Mrs. Ollivierre's name was recorded as ‘Eileen Ollivierre’ in the informant column of the Register. No photo identification documents as to the positive identity of the deceased Adina Ollivierre or the testatrix and informant ‘Eileen Ollivierre’ were produced. Ms. Samuel asserted that to the best of her recollection, her friend's name is Adina Ollivierre. She deposed that she is absolutely certain that the names ‘Adina Ollivierre’ and ‘Theresa Ollivierre’ refer to one and the same person. I shall return to this later.
Ms. Ollivierre testified that she used to be in the house owned by her godmother and uncle frequently as a child and until they passed. She deposed that she was very close to her uncle and godmother and became the latter's sole caretaker and breadwinner after her uncle's death. She indicated that she used to take her to the doctor and provide all she needed including food and medicine.
Ms. Ollivierre deposed that her godmother ‘had been in possession of the land for a period of fifteen years before her passing in 2012’. She indicated that they (presumably her uncle and godmother) paid rent to no one and that no one ever claimed the land. She explained that her godmother executed a Will on 16 th July 2003 in which she devised the subject land to her.
She exhibited ‘as a copy’, what appears to be an original of the Will. She did not indicate how the Will came into her possession or what had become of the original, if in fact the document produced was a copy. The testatrix is identified in the Will as ‘Eileen Ollivierre’. The named attesting witnesses are Adrian Wilson and Agnes Samuel. It is not clear if that Agnes Samuel is the person providing the referenced affidavit(s), because she did not mention of a Will or having witnessed it. It is conceivable that it is the same person and that seems to be the case. In this regard, the two affidavits describe the affiant as being a resident of Calder; being friends with Eileen Ollivierre; and having a son who was Eileen Ollivierre's godchild.
The Court must decide whether Ms. Ollivierre has satisfactorily established that the testatrix of the Will and her godmother is the same person; and if so, what weight to attach to the Will. She submitted that the standard of proof required is on a balance of probabilities. I agree.
Ms. Ollivierre argued that identity can be evidenced by sworn testimony; and any certifiable documentary evidence on which a Court can rely ‘to establish the truth of identity of the person carrying the two names.’ She reasoned that in this case, the sworn affidavit of Agnes Samuel 4 established that Eileen Ollivierre and Adina Ollivierre is one and the same person. She submitted that the affidavit is very specific. No legal authorities were advanced.
It is an established principle of law that the standard of proof in civil proceedings is on a balance of probabilities. It is striking that Agnes Samuel did not provide a supplemental affidavit as to the identity of the deceased Adina Ollivierre. Rather, her sworn account of this, is exhibited to Theresa Ollivierre's affidavit. It was not suggested that she is the same Agnes Samuel who provided supporting testimony regarding the application for possessory title proper. However, I infer that she is. In considering her testimony, I remain mindful that proceedings under the Possessory Titles Act 5 are not rendered invalid for informality or irregularity of form or process.
She was not present in court to provide additional details to clarify aspects of her testimony. For example, Ms. Samuel averred that referred to a death certificate which was exhibited, however no birth certificate was attached. The production of a birth certificate could have shed light on whether the deceased had any other given names. Likewise, although Ms. Samuel deposed that she always knew that her friend's official name was ‘Adina’ because she was entrusted with duties which related to consulting official documents owned by her. She did not say what those official documents were and she provided no details about the nature of such consultations or the circumstances surrounding them.
I am cognizant that the use of aliases is commonplace in the State of Saint Vincent and the Grenadines and that sometimes persons do not routinely use their proper names and might not even discover those names until later in life. I am also mindful of the prevailing domestic, regional and international concerns surrounding the propriety of and insistence on verification of identity in
legal transactions, particularly in courts of law. These requirements assume greater importance in matters relating to change of ownership to or ascertainment and proof of beneficial interest in property. The Court has to balance the applicant's interest against the imperative of satisfying itself regarding the testatrix's true identity.The Court did not have the benefit of observing Agnes Samuel's demeanour as she did not attend court. This must be borne in mind in evaluating her testimony. There is no rule of law or principle against a single witness providing evidence as to the proof of another's identity in civil proceedings. 6 Generally, however such evidence will carry more weight if it is corroborated, especially if it involves claims in respect of a deceased person's estate 7, as in the instant case.
In evaluating the weight to be given to evidence generally, the Court must apply common sense and its impression of the witnesses. 8 The Court is also obliged to take into account matters of motive, prejudice, partiality, accuracy, incentive and reliability 9. It is established as a matter of law that the oral testimony of a witness in open court is preferable to evidence given by an out of court witness. 10 Unlike the absent witness, the witness who is presented in Court can be observed by the judge and his or her demeanour and deportment observed.
In the instant case, there are unanswered questions regarding any relationship which exists between Agnes Samuel and Theresa Ollivierre. I hasten to add, that there is no reason to find that any such relationship exists; that Ms. Samuel is partial to Ms. Ollivierre; that her account is not reliable or accurate; or that any incentive exists for her to give favourable testimony on Ms. Ollivierre's behalf.
If accepted, Ms. Samuel's account benefits Ms. Ollivierre to the detriment of any person who might have an opposing beneficial interest 11 in the house on the subject land, in the capacity of a beneficiary of Mr. or Mrs. Frank Ollivierre's estate. Ms. Ollivierre and her witnesses did not indicate whether Mr....
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