Sydney Mcmillan (by His Attorney Andrea McMillan) Claimant v Julian Arrington Defendant [ECSC]

JurisdictionSt Vincent and the Grenadines
CourtHigh Court
JudgeMatthew J (Ag.)
Judgment Date10 May 2007
Judgment citation (vLex)[2007] ECSC J0510-2
Date10 May 2007
Docket NumberHIGH COURT CLAIM NO. 466 OF 2003
[2007] ECSC J0510-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

HIGH COURT CLAIM NO. 466 OF 2003

Between:
Sydney Mcmillan (By His Attorney Andrea McMillan)
Claimant
and
Julian Arrington
Defendant
Matthew J (Ag.)
1

On October 28, 2003 the Claimant filed a fixed date claim against the Defendant asking for an order for possession of a parcel of land located at Three Rivers, South Rivers. The claim was amended on July 28, 2004. The Claimant asked for costs; and further or other relief.

2

In the amended statement of claim, the Claimant alleged that the land consists of two parcels each approximately 1 1/2 acres by admeasurement. No plans of survey were submitted.

3

The Claimant alleged that the Defendant and himself are paternal half brothers and that the Defendant is currently in possession of the land which was donated to him by his fatherby virtue of indentures dated July 14, 2000 and bearing Registration Numbers 2096 and 2097 of 2000.

4

The Claimant alleged that some time in 1982 the Defendant and his full brother, Paul Arrington, were given permission to cultivate the land by their father, Maurice Defreitas.

5

The Claimant further alleged that in 1999 Maurice Defreitas developed prostate cancer, and needing money for his medical treatment, approached the Defendant to purchase the land which the latter refused to do; and therefore he had to pay all Maurice's medical needs and in consideration of the Claimant's love and affection Maurice executed two deeds of gift conveying both portions to the Claimant,

6

The Claimant alleged that he issued two notices to quit to the Defendant who has refused to give up possession.

7

On November 17, 2004 the Defendant filed a defence and counterclaim in which he claimed that he has been in sole, exclusive, continuous, public possession of the disputed parcels of land as owner from 1981 to the present time; and that therefore he has been in adverse possession of the said land for a period in excess of the Statutory Limitation period. He said the Claimant's alleged right of action is barred by the applicable provisions of the Limitation Act, Chapter 90 of the Revised Laws of Saint Vincent and the Grenadines.

8

The Defendant acknowledged the existence of Deeds 2096 and 2097 but said that these deeds were ineffective to convey the disputed parcels of land to the Claimant. Part of the defence is that Maurice Defreitas had orally donated the land to the Defendant.

9

The Defendant counterclaimed for an order that he is entitled to possession of both parcels of land; such further or other relief as the Court might seem just; and costs.

10

On February 9, 2005 the Claimant filed a reply and defence to the counterclaim in which he stated that the Defendant's possession was never adverse to that of Maurice Defreitasand that the Limitation Act of 1990 is not applicable since at least up to the year 2000 Maurice Defreitas demonstrated his rights of ownership.

11

The Claimant alleged that Maurice Defreitas remained in possession of the land until it was transferred to the Claimant by deeds of gift in 2000.

EVIDENCE
12

Andrea McMillan is the mother of Sydney McMillan. Both herself and Maurice Defreitas gave witness statements for the Claimant and were subjected to cross-examination. The Defendant, Julian Arlington, also gave a witness statement and was cross-examined. He called no witnesses.

13

Maurice Defreitas first gave evidence. He admitted he was the father of the Claimant and the Defendant. He said that he lived wth one Amazil Dublin who died in 1974 in a common law relationship that produced 12 children one of whom was the Defendant.

14

After the death of Amazil he entered into another common law relationship with Andrea McMillan and they produced children including the Claimant.

15

He said he purchased one parcel of land from Priscilla James and another from her brother, Aubrey James, and put his son, Paul Arlington, to work the land in the year 1981. Paul worked the land for one year having taken the Defendant to work with him and then left to go to work for Manny Francis.

16

He said after Paul left he called the Defendant to his home and told him to work the land and save his money so that when he is ready to sell, he will sell to him if he is able to provide the price for the land. He said early in 1990 he decided to sell the land. He called the Defendant and told him he is offering to sell him the land. The Defendant said he would return to talk to him about the offer and never returned despite messages sent to him up to the year 1994.

17

He said he continued going to the land even after he made the arrangement with the Defendant and he had about 5 acres of land next to the disputed parcels of land and he would often go to see how well the Defendant was managing the land. He said he continued going there until the year 2000 when he was diagnosed with prostate cancer.

18

He said after he realized the Defendant was not interested in purchasing the land he conveyed them to the Claimant.

19

Under cross-examination Maurice Defreitas stated that the Defendant did not pay rent or anything at all for the land. He admitted that the Defendant was refusing to buy the land from 1990 and that he never went on the land to work the land since the Defendant was working the land.

20

Andrea McMillan stated that in or about the year 1974 she became involved in a common law relationship with Maurice Defreitas after his first common law wife, Amazil Dublin, passed away.

21

She reiterated that Paul Arrington left the disputed land in 1981 and the Defendant took over after Maurice called him to his home and told him that he must work the land and save his money so that he can buy the land when his father was ready to sell.

22

She said she was present in 1990 when Maurice called the Defendant to their home and offered him the land for sale and the Defendant agreed to return to discuss the matter and never returned.

23

Under cross-examination she admitted that from 1981 to the present the Defendant has been working the land. She said in 1990 his father called him to buy. He refused to buy and has not handed back the land since.

24

Julian Arrington stated in his witness statement that he was the sixth child of the twelve children that his mother, Amazil Dublin, bore to Maurice Defreitas. He said in 1981 his father orally donated oen of the disputed parcels to him for his sole use and benefit. He said from that time his father has never gone on the disputed parcel of land, nor has he sought or received from him any produce of the land. He said he has cultivated the land for his sole use and benefit, planting bananas and other crops.

25

He stated that in 1993 by High Court Suit No. 168 of 1993, Fitzroy McDonald unsuccessfully brought an action against him for alleged trespass to some of the land he had been cultivating since 1982.

26

When he was cross-examined he reiterated that his father bought the land for him and they did not have any arrangement that he would work the land, save the money, and when the father was ready to sell, he would be given the first option to purchase. He denied that he was lying.

27

He said he was working the land for the benefit of himself and his children. He acknowledged that the father was owner in 1994 but not afterwards. He said his father was not involved in any way in Suit 168 of 1993 and he did not inform his father about the case.

28

He said he did not know that his father had given the land to his brother until he received the notice to quit.

29

After the taking of the evidence both Counsel requested, and the Court agreed, to allow both Counsel to present final submissions not later than April 25, 2007 at 3:00 p.m.

SUBMISSIONS OF COUNSEL
30

Learned Counsel for the Claimant submitted the issues in this case to be the following:

  • (a) Whether the Defendant was orally donated the disputed land or whether he was given permission to work the land with a promise of an opportunity to purchase.

  • (b) Whether the Defendant was in exclusive possession of the land.

  • (c) Whether or not an offer was made to the Defendant to purchase the land.

  • (d) Whether in his defence to Claim 168 of 1993 he acknowledged that Maurice Defreitas was owner of the land.

  • (e) Whether the Defendant was a licensee or tenant at will.

  • (f) Whether time ran in favour of the Defendant for the full period of twelve years thereby entitling him to a declaration of title.

31

Counsel then developed the submissions. On the first issue Counsel submitted that the Defendant ought not to be believed that his father donated the disputed land to him. On the second issue, Counsel submitted that Maurice Defreitas maintained a sort of overseeing or controlling presence with respect to the land.

32

Counsel submitted that by the Defendant's own acknowledgement in his defence in Suit 168 of 1993 he was not in exclusive possession and that at least up to that time could not claim adverse possession.

33

Counsel submitted that the acts of entry by Maurice Defreitas even if they may be considered formal in nature may be sufficient to negative the exclusivity of possession that the Defendant must assert for a claim of adverse possession as was found in the case ofSoiling v Brouahton 1893 AC 556 at pages 560–561.

34

As regards the third issue Counsel submits this is a question of fact for the Court to decide but urges the Court to accept the evidence of the Claimant rather than that of the Defendant.

35

As regards the fourth issue Counsel submitted that in Suit 168 of 1993 the Defendant in any event acknowledged that Maurice Defreitas was the owner and possessor of the disputed land. In this connection reference was made to Sections 29 and 30 of...

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