Thomas Gellizeau Applicant v Filius Ackie Respondent David Ackie Interested Party [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Combie Martyr, J. (Ag.) |
| Judgment Date | 02 April 2014 |
| Judgment citation (vLex) | [2014] ECSC J0402-1 |
| Court | High Court (Saint Vincent) |
| Docket Number | CLAIM NO. SVGHCV 2012/0029 |
| Date | 02 April 2014 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SVGHCV 2012/0029
In the Matter of an Application by Thomas Gellizeau for a Declaration of Possessory Title of Land
and
Application for Declaration of Possessory Title
and
On 3rd May 2012, THOMAS GELLIZEAU (the Applicant) filed an Application for a Declaration of Possessory Title by twelve years adverse possession, in respect of a portion of land being Lot No. E 103 measuring 3 acres 3 roods and 35 poles, situate at Belmont, Union Island, pursuant to the Possessory Titles Act Cap 328 Revised Edition of the Laws of Saint Vincent and the Grenadines (the Act).
The Application was supported by the Affidavits of the Applicant, Stanford Coy and Evrard Gellizeau filed on the 3rd May 2012 and of Kate Danielson Millar filed on the 7th August 2012. Accompanying and other supporting documents were filed in compliance with the Act and relevant Practice Directions.
On the 30th May 2012, pursuant to Section 9 of the Act, an appearance was entered on behalf of FILIUS ACKIE (the Respondent) opposing the Application and a Claim with supporting documents were filed on the 16th May 2013.
On the 21st May 2012 pursuant to Section 9 of the Act, an appearance was entered on behalf of DAVID ACKIE opposing the Application. No claim was filed and the appearance was subsequently withdrawn on the 19th December 2012.
On the 13th September 2013, DAVID ACKIE (the Interested Party) filed an affidavit and supporting documents pursuant to Section 15 of the Act, in which he attested to information in relation to the nature of the possession of the land claimed by the Applicant.
Affidavits of Dorita Ackie and Fitzroy Ackie in support of the Interested Party were filed on the 27th August 2013.
In his Affidavit in support, the Applicant stated that he has been in possession of the land for over 35 years, being Lot No. E 103 measuring 3 acres 3 roods and 35 poles, situate at Belmont Union Island, more particularly described in survey plan Gr 1223 drawn by Keith Francis Licensed Land Surveyor and lodged at the Lands and Surveys Department on the 13th September 2011 (subject parcel).
The Applicant stated that the subject parcel was originally owned by John Danielson (John) and his wife Jayne Ruth Danielson (Jayne) but purchased in the name of Jayne only. John and Jayne in 1971 established Grenadines Development Company Limited (GDCL) for the business of land development-constructing houses on Union Island for sale to foreign investors. The Applicant was employed by the Danielsons as a construction worker and over the years became well acquainted with the Danielsons and their two children Katharine (Kate) and Elizabeth.
In the 1970's Jayne left Union Island with her children for the United Kingdom and died sometime thereafter, but the Applicant kept contact with the daughter Kate. John got married a second time to Helen Danielson (Helen) and he too left Union Island sometime about 1975 for United States and never returned, leaving Helen to carry on the affairs of the land purchase and development and construction business of GDCL and the other lands.
According to the Applicant Helen also left Union Island for the United States about the year1977, leaving the Applicant in charge of collecting monies owing to John's business and to look after the affairs relating to lands purchased by John and Jayne. Thereafter Helen visited Union Island but showed no interest in the land.
The Applicant asserts that about1991, Kate and Elizabeth on a visit to the island informed him of the death of their father and that the Applicant should look after the affairs of the land belonging to her late mother, including the subject parcel.
According to the Applicant he has been enjoying uninterrupted, exclusive and undisturbed possession of the said lands for35 years, paying property taxes for the subject parcel and has been looking after all the lands owned by Jayne to date.
Affidavits of Stanford Coy and Evrard Gellizeau were not relied on at the trial.
Kate in her Affidavit attested that she is well acquainted with the Applicant having known him from her early childhood as being employed with her parents who operated a construction business on Union Island from the 1960s to the 1970's. During that time her parents purchased lands and the subject parcel was one such parcel owned by her mother.
Kate asserted that following the departure of the Danielsons from Union Island from about 1977 and 1991 the Applicant was put in charge to take care of the family lands including the subject parcel.
Kate further asserted that on her visit to the island in the 1990s, she was informed by the Applicant that he had given permission to the Interested Party to live on a small portion of the subject parcel upon which the Interested Party constructed a wall structure. She stated that she knew the Applicant to be in effective undisturbed possession of the subject parcel since early 1977, paying property taxes and knows of no one else claiming possession of the subject parcel.
The Respondent in his claim filed on the 16th May 2013, confirmed that the subject parcel was in fact Lot No. E103 originally shown on a Plan Gr2 and now Survey Plan No. Gr.1223.
The Respondent described a detailed history of the business of land development which he and John had embarked upon, comprising the purchase of 19 portions of land from locals in Union Island in Jayne's name only on behalfof John and herself, for the purpose of construction by the Respondent of houses designed by John for sale to foreign investors. The Respondent posited that some of the lands purchased were transferred to GDCL.
The Respondent asserted that the business arrangement marked the beginning of a close friendship between John and himself and he became well acquainted with the Danielson family. Further, that the Applicant was employed by him and worked for him during the construction of the houses and roads for the business.
The Respondent also posits that of the 19 parcels of land purchased, 11 parcels were transferred to the GDCL and the 8 parcels including the subject parcel remained in Jayne's name held on trust by Jayne for GDCL. The Respondent conceded that the subject parcel was originally purchased by Jayne from John De Roche, was not transferred to GDCL.
The Respondent further stated that Jayne came to Union Island in 1970 and on two visits thereafter. After her final visit in 1973 she left her two girls Kate and Elizabeth with their father for three months during which time the Respondent and his family took care of them. Jayne died in 1974 and before John left in 1975, he resigned from the company and left the Respondent in charge of the company and the land business. Helen left Union Island in 1976–1977 and never returned, leaving the Respondent in charge of the business. The Respondent did not provide any evidence in support of these aforementioned assertions in respect to the GDCL.
The Respondent constructed a house for the foreign investor Dr. William McCarty on the subject parcel about 1976, who put him in charge of the rental of his property, the payment of the house insurance and construction of a road leading to the house with funds provided by Dr. McCarty. Over the years the house remained unoccupied and was frequently broken into. The Respondent at the request of the Applicant together with the police and neighbours assisted in putting out a fire which partially destroyed the house about 1979. Thereafter Dr. McCarty never returned to Union Island and from about1979, the Respondent went into adverse possession of the subject parcel.
Sometime in 1983 the Respondent left Union Island for three years to work on a construction project in Trinidad and according to him he entrusted the Applicant acting on his behalf with some of GDCL'S affairs, returning every three months to check on the business until he finally returned home in 1986.
The Respondent stated in his claim that the partially burnt house remained unoccupied until the Interested Party his nephew, returned from Trinidad in 1986, sought and obtained permission from the Respondent to move into the house on the subject parcel rent free, but the Respondent continued to exercise rights of ownership, by cultivating the land and tying animals thereon. TheInterested Party with the permission of the Respondent, repaired the house, maintained it and lived there with his wife and children until the Interested Party migrated to Canada about the year 2000 and his wife and children followed a few years thereafter. The Interested Party's house on the subject parcel remained unoccupied for sometime.
The Respondent asserted and it is not disputed, that he exercised control over and was responsible for all the business of GDCL on Union Island in conjunction with the foreign investors. The Respondent in his claim described the operations of the GDCL and his role as Managing Director, which included rental of the various houses built. The Respondent detailed various court proceedings involving GDCL and lands other than the subject parcel, disposition of the assets of GDCL, reorganization of GDCL and its administration.
Mrs. Dorita Ackie in her Affidavit filed on the 27th August 2013 stated that she has lived her entire life in Union Island. Her son the Interested Party on his return from Trinidad about 1987, first rented and then looked for a place of his own and he built his house on the subject parcel.
Mrs Ackie stated that she knows the Applicant and the Respondent her...
To continue reading
Request your trial