Verina James Claimant v Alston Mckenzie Defendant [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Mitchell, J |
| Judgment Date | 04 February 2002 |
| Judgment citation (vLex) | [2002] ECSC J0204-4 |
| Court | High Court (Saint Vincent) |
| Docket Number | CIVIL SUIT N0. 305 OF 2000 CIVIL SUIT NO.318 OF 2000 |
| Date | 04 February 2002 |
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT N0. 305 OF 2000
consolidated with
CIVIL SUIT NO.318 OF 2000
This was a land dispute between a mother and son on the one part, and the daughter/sister on the other. The subject of the dispute was landpreviously owned by the mother and now claimed both by the daughter and by the son to have been given to them by the mother.
The case began on 24 July 2000 by the filing by Verina James of a generally endorsed writ and a summons for an interlocutory injunction against her brother Alston McKenzie. She claimed (1) a declaration that she is the sole owner of the land described in her deed No 1403 of 1981 as being one lot bounded on the north and east by Israel Pluto, on the west by Bulze, and on the south by land now or formerly owned by her mother Annie McKenzie; (2) an injunction restraining Alston McKenzie from entering her land; (3) a declaration that his deed No 1201 of 2000 transfers nothing, the grantor having divested herself of all her land in Belair prior to the execution of the deed; and (4) damages for trespass. In her affidavit of 24 July 2000 filed in support of her summons for the interlocutory injunction, she deposed that her mother Annie McKenzie had held title to a lot of land by a possessory deed No 521 of 1976; that on 24 April 1981 her mother had given her a deed No 1403 of 1981 for a portion of the lot described as above; that from the description it was obvious that her mother had given her all her land except for the portion on her southern boundary; that since 1981 her mother had transferred the remaining land to two sisters, Mercy Bowman and Elize McKenzie, or Elize's daughter Merlene Victory, in two separate conveyances, both of them having built houses on their portions; that she had lived on the land with her husband in their matrimonial home since about 1958; that all 5 of her children had been born there; that her brother Alston McKenzie had lived elsewhere in Old Montrose for the past 30 years; that on 24 March 2000 her mother, who was then some 94 years old, nearly blind, and enfeebled, had purported to give a parcel of land in Belair to Alston; that the deed had been registered as No 1201 of 2000; that it had described the land given as, "all that triangular lot piece or parcel of land situate at Belair … bounded on one side by lands of Mercy McKenzie on the second side by land of Elize Victory on the third side by land of Verina James and Israel Pluto …;" and, that on 26 and 27 June 2000 Alston had wrongfully entered on her land and had destroyed about 20 holes of peas and 10 palm trees; that on28 and 29 June he had again wrongfully entered on her land and had picked a quantity of mangoes; that on 18 July he had wrongfully began digging up the land for the purpose of planting crops on it; that he had given her an ultimatum to move her latrine and her sheep pen and had said that he will destroy them if she did not do as he wished; that he had also threatened to shoot her whenever she asked him to leave the land; and, that the previous year he had struck her on her shoulder with a piece of steel causing injury.
On 26 July 2000 Alston filed his affidavit in reply. He deposed that by deed No 1201 of 2000 he had become the owner of the land in dispute at Belair; that Annie McKenzie had formerly devised the same land to his sister Molly; that prior to making her Will of 9 August 1985 and a sketch attached to the Will his mother had divided her parcel of land amongst her children; that by an affidavit sworn to on 23 April 1997 by Verina James in suit No 364/1996 in which her sister Mercy was the defendant Verina James had stated that in the 1950s and 1960s her mother had informally subdivided her parcel of land into several lots and had given her one lot and had given her sister Molly another adjoining lot; that in the dispute over the access she had suggested to Mercy that she, Mercy, should make available a driveway to permit her, Verina, and Molly access to their lots; that Annie had never intended to give Verina land bounded by Bulze as set out in her deed and that the boundary description in Verina's deed had been a mistake as to do so was to have given away Molly's piece of land and would not have been in accordance with the earlier informal subdivision of the land; that Verina knew fully well that it had been a mistake and that she could not benefit from such a mistake under a voluntary conveyance; that the court would rectify the deed to conform with the common intention of the parties; that her mother had named Verina as the Executrix of her Will and had given her a copy of the Will together with a copy of the sketch; that these had been exhibited by Verina in yet another suit No 299/1999; that he had entered into possession of Molly's land; that Verina had first contended that the land was Molly's land and later denied that Molly had any land there; that he had requested that Verina remove a pigpen and an outsidelatrine from off his premises; that he denied ever having threatened to shoot Verina; and, that Verina was being fraudulent and was not entitled to equitable relief. The perambulatory Will of Annie, who is still alive, was exhibited. This Will was made on 9 August 1985, just 4 years after Verina's deed. In it Annie stated that she bequeathed her land at Belair to her 3 daughters Mercy Bowman now residing in Canada, Elize Victory of Belair, and Molly Abraham also residing in Canada, less the lot of land granted by her to Verina by deed No 1403 of 1981. The sketch was exhibited to this affidavit. The sketch is very amateurishly done, and consists of a sheet of paper with names scattered about on it and with the cardinal points indicated showing that Verina had a lot to the north, Molly is to the south of her, and Mercy and Elise to the east of Verina and Molly.
By an affidavit in reply filed on 31 July 2000, Annie deposed that she had voluntarily settled on each of her children Verina, Elize, Mercy and Alston a piece of her land at Belair; that the piece she had settled on Alston was the piece she had previously willed to Molly; that the boundaries to Verina's land were incorrect as she had never intended to give her any part of Molly's land; that Verina well knew that was never her intention; that Alston's deed also had a mistake in the description of his boundaries which she asked to be corrected; she asked for an early trial due to her age and health and because she would like to return to Canada as soon as possible and because Verina had not been truthful to the court. On 31 July 2000, an interlocutory injunction was granted to Verina restraining Alston from assaulting Verina or her husband or from entering upon the land in dispute.
On 28 August 2001, after the trial had actually begun, Verina with leave of the court filed an affidavit in reply. In it she deposed that she had been given a power of attorney on 17 December 1981 which power of attorney had never been revoked; that in the power of attorney Annie had agreed "to confirm all and whatsoever my said attorney shall lawfully do or cause to be done by virtue of these presents;" that the right to bring the action for recovery of the disputed landdid not first accrue to Alston within 12 years before the commencement of the action and his right of action was barred by section 17 of the Limitation Act, Cap 90; that Alston and Annie were guilty of prolonged and inordinate delay in bringing this action and seeking the relief claimed and had thereby caused her, Verina, to believe, as in fact she did, that they did not intend to make the claim they were making and they had caused her to act to her prejudice; that by their conduct they had waived their right, if any, which was denied, to claim the relief they were claiming. This was the last affidavit on this file.
Suit No 318/2000 commenced on 31 July 2000 with the issue of a generally endorsed writ issued by Annie McKenzie and Alston McKenzie against Verina. In it they claimed rectification or rescission of Verina's deed No 1403 of 1981; alternatively, an order that Verina reconvey to Alston the land known as Molly's land; and, an injunction restraining Verina from entering, crossing, occupying, or cultivating Molly's land. In his application for an injunction filed on 10 August 2000 he, Alston, repeated the matters he had claimed in the earlier suit; he further deposed that he was concerned that Verina might attempt to sell, mortgage, lease, exchange or transfer his piece of land to his detriment; he therefore sought an interlocutory injunction to restrain Verina from dealing in the title to the disputed land. On the same day, his mother Annie filed an affidavit in his support in which she repeated the facts she had deposed to in the earlier suit and expressed the same concern as Alston in his affidavit of the same day and similarly requested an injunction against Verina dealing in title.
On 9 September 2000 Verina filed her affidavit in reply. The new information in this affidavit included that the land in dispute was 10 feet away from her house; that Annie was nearly blind and terribly enfeebled being unable to read or to walk on her own and that her memory was extremely flawed; that Annie no longer knew or understood what she was putting her signature to; that Annie was incapable of managing and administering her property and affairs and was a person under a disability.
On 25 September 2000, Alston filed an affidavit in reply, essentially denying Verina's allegations. He exhibited an affidavit of Verina in suit No 364/1996 from which he had in an earlier affidavit quoted an extract. From this affidavit, which had been prepared by Parnell Campbell Esq,...
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