The Incorporated Trustess of the Seventh day Adventist Church Applicant v Delores Jordan Respondent [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | JOSEPH, Monica J. |
| Judgment Date | 21 July 2011 |
| Judgment citation (vLex) | [2011] ECSC J0721-2 |
| Docket Number | HIGH COURT CLAIM NO. 48 OF 2009 |
| Court | High Court (Saint Vincent) |
| Date | 21 July 2011 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
HIGH COURT CLAIM NO. 48 OF 2009
On 1st September 2009 the Applicant filed an application seeking declaration of possessory title to a parcel of land, 3,715 sq ft., situate at Chateaubelair (the disputed property). That application was made in accordance with section 3 of the Possessory Titles Act 2004 (No. 38 of 2004) (now Cap 238) (the Act). The application was supported by affidavits of Yvonne Jordan, Norma Marshall, Doreen Mason, Selwyn Jones (who gave oral testimony) and Roseclair Roberts (deceased) filed in accordance with section 5 of the Act.
There was publication of the application in the High Court building, Magistrate's Court building and newspapers as required by section 7 of the Act. The application wasopposed by respondent Delores Jordan (Administratrix of the estate of Leon Jordan deceased), who filed an entry of appearance on 7th October 2009.
In accordance with section 7 of the Act the Respondent filed an opposing claim on 2nd November 2009. Affidavits in support of the opposing claim were filed on 9th March 2009, by Delores Jordan, Wonetha Jordan, Andrew Cummings, (who gave oral testimony) and Savillle Cummings (deceased).
During cross examination of Andrew Cummings, it was suggested that the Respondent was claiming a different parcel of land, or a parcel of land differently described. I accept the disputed property (3,715 sq ft) at Chateaubelair as published: "on the North by an allotment road, on the North-east by an existing road and West by a road leading to Leeward Highway on the South by lot Number 20 on Plan D62.."
On this property stands a building which is occupied by the Seventh Day Adventist Church. As I understand Selwyn Jones, an elder of the Church, the local community Church has certain responsibilities, but when property is acquired by the church, it is owned by the Incorporated Trustees of the Seventh Day Adventist Church in St. Vincent (Applicant).
The under-mentioned documents were put in evidence by the Respondent:
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(1) A statutory declaration No. 3191/2000 filed on 2nd November 2009 —Leon Jordan declared that for the past forty-two years he had been in possession of the disputed land from the death of his sister Rosa Jordan, the owner of the land who died on 29th April 1956. Rosa Jordan is Leon's aunt.
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(2) Letters of Administration No. 203/2002 of 29th December 2002, granted to Delores Jordan, Daughter and Administratrix in the estate of Leon Jordan.
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(3) Suit No. 184/2007 —Notice of application Delores Jordan (Administratrix of the estate of Leon Jordan, deceased) against The Seventh Day Adventist Church and Norma Marshall filed on 21st May, 2009.
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(4) Chateaubelair Town Board receipts for town rates for 1998, 1999 and 2000 in the name of Lucy Jordan 2001 to 2009 in the name of Leon Jordan.
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(5) Property Information Report: Property name is Leon Jordan from 1995 to 2006.
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(6) Central Water Sewerage Authority receipt in the name of Florence Jordan c/o Seventh Day Adventist Church —billing period April-May 2005; periods in 2009.
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(7) Property tax bills of Inland Revenue Department, Kingstown for tax years 23rd June 2004 and 3rd July 2006 in name of Leon Jordan c/o Florence Jordan. Owner shown as Leon Jordan.
Lucy Jordan, accepted as owner of the disputed property, died in 1956. On her death, Carmen Cummings (Cummings) became caretaker of the disputed property. In 1977, the Applicant, through Norma Marshall (Marshall) sought permission of Cummings to renovate and occupy the disputed property.
Improvements were made to the disputed property by members of the Church's congregation. Cummings died on 29th October 1997. The Applicant continued in occupation to the present date.
With the exception of claim no. 184 of 2007 by Delores Jordan which was dismissed with costs awarded to the Applicant, the Applicant has been in exclusive and undisturbed possession of the property for the statutory period of twelve years.
The Respondent Delores Jordan is the daughter and administrator of the estate of Leon Jordan deceased who made a statutory declaration for the disputed property on 17th September 1998. Letters of Administration in the estate of Leon Jordan were granted. The disputed property is included in the estate of Leon Jordan.
The Respondent and members of her family have been paying the taxes for the disputed property since 1998, first, in the name of Lucy Jordan, and then from 2001 in the name of Leon Jordan.
Both sides have admitted that the disputed property was owned by Lucy Jordan although a paper title was not produced. It was also admitted that Lucy Jordan placed Cummings (referred to by witnesses as Ms. Carms) in charge of the disputed property. After Lucy Jordan's death, Cummings permitted a number of persons to occupy the disputed property, the last being Marshall, on behalf of the Applicant, about 1977.
About 1977, Marshall, acting for and on behalf of the Applicant, asked and obtained Cummings' permission to use the disputed property to hold church services. The Applicant is in occupation of the disputed property to date.
According to Leon Jordan's statutory declaration, at the time of its making in 1998 he had been in possession of the disputed property for 42 years through Cummings, his agent. Forty-two years back from 1998 would be 1956 the year that Lucy Jordan died.
The Applicant claims to have begun to occupy the disputed property as owner from 1997 when Cummings died. Up to the time of her death the Applicant considered Cummings to be the person in control of the disputed property.
Learned Counsel for the Applicant submitted: The Church claims title by adverse possession pursuant to section 2 of the Possessory Title Act. Delores Jordan, one of the children of Leon Jordan and administrator of his estate, has opposed the grant of title to the church on the grounds: Lucy Jordan who was acknowledged to be the owner of the property but without a paper title had told Cummings that the property should go to Leon Jordan who is described by his descendants as his aunt and by Leon Jordan, in a solemn declaration as his sister.
Cummings never did anything to pass the property to Leon Jordan but instead in 1976 put the Church in possession as a place of worship and the Church has never paid any rent to her or anyone else.
Marshall in two affidavits detailed how the Church came to be in possession and the Church's reaction to defend its possession. Wonetha Jordan deposed for ten years her family has been objecting to the Church's occupation of the disputed property. Similar averment by Delores Jordan, both ignoring that the Church had been in quiet and undisturbed possession for 24 years prior to these protests and the legal effect of that occupation.
The evidence of Saville Cummings and Andrew Cummings attempts to show that Leon Jordan was the "owner" without paper up to 3rd October 2000 when two years later Leon Jordan's statutory declaration of continuous possession of the disputed property that was made on 17th September 1998 was registered. That document, argued Learned Counsel, is self-serving and can avail the Respondent nothing.
The declaration that Lucy Jordan was his sister cannot be believed as under cross-examination Worentha Jordan said that Leon Jordan had told her that Lucy Jordan was his aunt. Learned Counsel invited the court to find that the evidence of the Jordan is unbelievable. Inconsistencies make the evidence for the Respondent unreliable and should be rejected by the court.
Instances of inconsistencies given: even though they were a family of ten living in a two bedroom house within a stone's throw of the disputed property and knowing that the property "belonged" to their father, they did not ask Cummings to put the Church out of the property so they can move there. Further that. Cummings was to collect rent from the Church to help alleviate the poverty they said they were experiencing. Why if they were so sure that the property belonged to the family did they not seek to interfere with the Church's possession until after the death of Cummings and the making of the most questionable declaration of title?
There are curious aspects of Robert Andrew Cummings' affidavit as well. If it was considered imprudent by him "to give" the property to Leon Jordan because he was a drunkard and would sell it to get drinking money. How did it become prudent to make the declaration of title purporting to give him the right to sell after the death of Cummings? Surely, a proper legal way could have been designed (by assignment) "to give" the property to Delores Jordan who described herself as their father's "right hand" for the benefit of the family.
Whatever may have been her "arrangement" with Lucy Jordan, if at all there was one, Cummings being a truly Christian lady considered it proper to hand the property over to the Applicant to carry on and further the service of the Lord.
Learned Counsel's submission was that the Applicant's evidence remains believable and uncontradicted and should be accepted by the court. If accepted, does the possession of the Claimant entitle them to a declaration under the Act? The quality of possession that would entitle a possessor (a trespasser or one put into possession as in this case) has been discussed in cases:Tootsie Persaud Ltd. v Andrew James Investment Ltd and Others. CCJ App. No. CV 1 of 2007. Civ. App. No. 72 of 2004 and J.A. Pye (Oxford) Ltd and Others v...
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