In The Matter Of An Application By Walter Baptiste

THE EASTERN CARIBBEAN SUPREME COURT SAINT VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE SVGHPT2017/0032 IN THE MATTER OF AN APPLICATION BY WALTER BAPTISTE FOR A DECALRATION OF POSSESSORY TITLE OF LAND APPLICATION FOR DECLARATION OF POSSESSORY TITLE Appearances: Mr. Cecil Blazer Williams of counsel for the applicant. ------------------------------------------ 2018: May 28 Jun. 25 ------------------------------------------- JUDGMENT BACKGROUND

[1]Henry, J.: Mr. Walter Baptiste made1 an application for a declaration of possessory title to a parcel of land situated at Sion Hill in the Parish of Saint George in the State of Saint Vincent and the Grenadines. It is approximately 2,855 sq. ft. and is depicted on survey plan G62/43. No objection was lodged against the application.

[2]Mr. Baptiste alleged that he lived in a house on the land with his mother Robertha Baptiste from his childhood. He testified that she passed away on January 26th 1973 and that he continued living there after her death. He averred that he made substantial repairs to the house in 2011 when it became dilapidated and that he also fenced the property to keep out trespassers.

[3]Mr. Baptiste stated that he pays the land taxes for the property. He claimed that he picks fruit from the paw paw, golden apple and soursop trees on the property and has fenced it to keep out trespassers. He claims that he has enjoyed exclusive and undisturbed possession over the said lands in excess of 12 years and is therefore entitled to a declaration of possessory title.

[4]He did not indicate who constructed the house which he renovated. He did not say whether his mother was survived by a spouse or other children. If there were and if his mother died intestate, such persons could conceivably claim an interest in the said lands. Mr. Baptiste was invited to file written submissions to address the relevance of the Administration of Estates Act2 to his application. He did so. The application is denied.

ISSUE

[5]The sole issue is whether a declaration of possessory title should be granted to Walter Baptiste.

ANALYSIS

Issue – Should a declaration of possessory title be issued to Walter Baptiste?

[6]Mr. Baptiste provided affidavit testimony as did his witnesses Cheryl Rosemary Hannibal and his daughter Cecelia Jacqueline Williams. They testified that they are 87, 62 and 73 years old respectively. Mr. Baptiste stated that his mother died on January 26th 1973 and that she was unmarried. He produced a death certificate in respect of Robertha Baptiste. He indicated that his mother had other children, namely Grafton Baptiste and Keitha Baptiste. He said that Grafton has passed away, but that Keitha lives at Sion Hill.

[7]Roughly a week later Mr. Baptiste filed a supplemental affidavit. He did not seek permission to do so as he should have, since he had already closed his case. The Court will consider its contents in the interest of justice. In it, Mr. Baptiste deposed that he is 88 years old and not in good health. He averred that his earlier testimony regarding Keitha’s death is not accurate. He deposed that he did not at that time recall that his sister Keitha was also dead. He averred that she is deceased and he produced a death certificate3 which records the death on 5th May 2004 of Keitha Williams of Sion Hill. I accept that she is deceased.

[8]I note that she survived her mother. Mr. Baptiste did not indicate whether his sister had children who survived her. If she did, those children would be entitled to their mother’s interest in the subject property, unless she left a Will to contrary effect. There is no evidence before the Court of those matters.

[9]The referenced land at Sion Hill is delineated in Survey Order No. P291/2017 on survey plan G62/43. The survey plan which was approved and lodged at the Lands and Survey Department on 29th May 2017 by Chief Surveyor Keith Francis. It is bounded: On or towards the North-East by lands of Rosalie Hannibal, on or towards the South-East by an access road, on or towards the South-West by lands of Michelle Wiseman, on or towards the North-West by a public road.

[10]Mr. Baptiste claimed that he has paid the land taxes since 1973. He produced a bundle of photocopied receipts issued by the Kingstown Town Board, St. Vincent4 and the Inland Revenue Department5. They appeared on the face to reflect payment of taxes for the revenue years 2011, 2002, 2003, 2004-2011, 2013, 2015, 2016 and 2017. They appeared to have been issued in June 2001, May 2002, July 2002, July 2003, October 2013, September 2015 and March 2017 respectively. The reference number on the receipts is #1/10/1/36 Sion Hill. Other receipts referred to property ID#8453PP298371. The originals were not provided to the Court for verification.

[11]Mr. Baptiste’s daughter Cecelia Williams deposed that she has lived with her father in the dwelling house on the said land from since she has known herself, until 1984 when she moved to her own house in Sion Hill. She corroborated her father’s account that he has lived on the subject property since his mother’s death, has fenced it and pick fruits from the trees there. She indicated that he left it in 2011 because of the poor condition of the property.

[12]She asserted that she knows of no one who is claiming to the owner of the property and that she considered her father to be the rightful owner. Ms. Hannibal’s testimony was almost identical. She deposed also that she owns land which has a common boundary with the subject lands.

[13]Mr. Baptiste filed a survey plan of the subject lands, a valuation report which estimated the value to be approximately $47,900.00. He filed copies of notices. They were not certified or authenticated in accordance with section 51 of the Evidence Act6.

[14]Ms. Valtrice Butler deposed that she is a Secretary in the law chambers of Cecil A. Blazer Williams. She stated that the law chambers caused notices of the referenced application in publications of the Vincentian and Searchlight Newspapers on Friday September 1 2017 and Friday October 13th 2017 respectively. She did not say why the actual newspaper publications or certified copies were not tendered into evidence. Mr. Baptiste made no submissions on that point.

[15]He complied with other statutory notification requirements which stipulate that the neighbouring landowners be served with notices of his application and that copies of the notice be placed in a conspicuous place at the Magistrate’s Court in his district and at the High Court Registry office.

[16]Mr. Baptiste submitted that the application cannot be properly adjudicated on, without consideration of the Limitation Act, Cap. 129 of the Revised Laws of Saint Vincent and the Grenadines, 2009, the Possessory Titles Act, Cap 328 of the Revised Laws of Saint Vincent and the Grenadines, 2009 in relation to the Administration of Estates Act Cap. 486 the Revised Laws of Saint Vincent and the Grenadines, 2009. He rehearsed paragraph 5 of his application in support.

[17]It states: ‘The applicant has been in exclusive and undisturbed possession of the said parcel of land for over twelve (12) years as appears by the following facts: (a) The Applicant lived in the house on the said parcel of land from his childhood with his mother, Robertha Baptiste, deceased, who died on January 26th 1973. He continued to live in the said house after her death. (b) The Applicant lived in the house until 2011 when it became dilapidated and in need of repairs. (c) The Applicant has fenced the land to keep out trespassers. (d) The Applicant picks fruits from the said land. These include paw-paw, golden apple and soursop. (e) The Applicant pays the Land and House Tax for the said parcel of land.

[18]Mr. Baptiste pointed out that paragraph 6 of the application states: ‘The Applicant claims on his own behalf ownership of the said parcel of land.’ He submitted that when a person dies intestate, his real and personal estate vests in the Chief Justice, pursuant to section 31 of the Administration of Estates Act. He submitted further that section 47 of the same Act provides that on the death of an intestate, his real and personal estate is held by his personal representative on trust for sale on the one hand and on trust to call in the same, sell and convert into money on the other hand. That indeed is the law.

[19]Mr. Baptiste referred to section 62 of the Act which provides for the children of an intestate to share equally in such estate. He argued that he is not his mother’s personal representative. He submitted that he has made no application for administration of Robertha Baptiste’s estate. He contended that she died intestate without proper title to the subject lands. It appears that she did. The Court remains mindful however that a concrete house7 sits on the said lands. I infer from Mr. Baptiste’s account that the house was built by his mother. In that regard, the mother’s interest in the house devolves to her beneficiaries, on her death, even if she had not obtained title to the land.

[20]Mr. Baptiste argued that he is one of three children and that his siblings are deceased. I accept this to be the case. He submitted that the Court should consider two situations before making a restrictive application of section 62 of the Administration of Estates Act. 1. Firstly, where all siblings are deceased; and 2. Secondly, where all siblings approve of the application. There is no evidence that all of the siblings approved the application. I draw no such inference from the witnesses’ testimony. I make no finding that such approval has been granted by the referenced siblings and note that in this regard, Keitha Baptiste died over 14 years ago. It is not clear when Grafton passed away.

[21]Mr. Baptiste contended that the provision of section 7 of the Possessory Titles Act for notice and advertisement to the rest of the world gives person entitled ‘through all degrees’ an opportunity to file an appearance thereby allowing the Act to fulfill its purpose in keeping with the intention of Parliament. This submission ignores the principle of law that a beneficiary cannot obtain adverse possession of land in breach of his trustee obligations to co-beneficiaries8.

[22]Mr. Baptiste submitted that sections 24 and 27 and Part 1 of the Schedule of the Limitation Act are relevant. Sections 24 (a) and 27 provide: ’24. Subject to section 23 (1) and (2)- (a) No action in respect of any claim to the personal estate (whether under a will or on intestacy) shall be brought after the expiration of twelve years from the date on which the right to receive the interest accrued …’ 27. For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person shall be treated as claiming as if there had been no interval of time between the death of the deceased person and the grant of letters of administration.’

[23]Mr. Baptiste contended that the effect of section 27 is that the time for recovering land runs against a deceased person’s estate, regardless of whether an executor or administrator is appointed. He misconstrued the provision. In fact, that section provides that the provisions of the Act must be interpreted in such a way, that when an administrator of an intestate’s estate brings a claim to recover land forming part of the intestate’s estate, such claim would be treated as if there was no interval between the deceased’s death and the grant of letters of administration.

[24]It follows that in such a case, the administrator would not be able to rely on the provisions which afford him a grace period between those two events. This section does not assist Mr. Baptiste and does not apply to the circumstances in the instant case. Mr. Baptiste is not bringing a claim to recover any part of his deceased mother’s estate and no one has brought an action or claim against him for that purpose. The provision would not assist an administrator who is subsequently appointed to administer Robertha Baptiste’s estate. However, the position of Mr. Baptiste’s co- beneficiaries is different as explained later.

[25]Mr. Baptiste submitted that the case of Re Williams9 is authority for the position that in relation to the Statute of Limitation 1833 time begins to run as against an administrator claiming a chattel interest in land from the date of death of the intestate, and not from the date of the grant of Administration. In delivering the judgment, Stirling J. set out section 6 of the Statute of Limitations in his judgment.

[26]It is almost in identical terms as section 27 of the Limitation Act of Saint Vincent and the Grenadines. Stirling J. concluded that the section applied for all purposes of the Act. He opined that the parties in the case were ‘… in the same position as if the letters of administration had been granted immediately after the death of the intestate, and accordingly that time under the statute began to run as from the date of the death, and not from that of the grant.’ I accept that this is the correct interpretation.

[27]Mr. Baptiste submitted that Stephen Jordan comes to the same conclusion in his text Adverse Possession10 on an examination of section 26 of the English Limitation Act 1980 which is the same as the local Limitation Act. As indicated in paragraph [27], this provision has no applicability to the present case. Therefore, the Re Williams9 case and the pronouncements by Stephen Jordan do not apply and do not advance Mr. Baptiste’s case.

[28]Mr. Baptiste invoked paragraphs 2 and 9 of Part 1 of the Schedule. Paragraph 2 states: ‘Where any person brings an action to recover any land of a deceased person (whether under a will or an intestacy) and the deceased person- (a) Was on the date of his death in possession of the land or, in the case of a rent charge created by will or taking effect upon his death, in possession of the land charged; and (b) Was the last person entitled to the land to be in possession of it, the right of action shall be treated as having accrued on the date of his death.’

[29]Paragraph 9 provides: ‘Where any settled land or any land on trust for sale is in possession of a person entitled to a beneficial interest in the land or in the proceeds of sale (not being a person solely or absolutely entitled to the land or the proceeds), no right of action to recover the land shall be treated for the purposes of this Act as accruing during that possession to any person in whom the land is vested as tenant for life, statutory owner or trustee, or any other person entitled to a beneficial interest in the land or the proceeds of sale.’

[30]Mr. Baptiste quoted from the judgment of Edwards J.A. in Luella Mitchell (Administratrix of the Estate of Cornelius Jones deceased) et al v Maurice Jones (Beneficiary of the Estate of Cornelius Jones11 where she stated: ‘[61] On appeal by the defendant, dismissing the appeal, it was held: that the effect of the Limitation Act 1980 was to re-introduce the doctrine of non-adverse possession among beneficial co-owners of land, allowance being made for the trust for sale which was an inevitable feature of such ownership; that, although the President of the Family Division was not, while the farm was vested in him, a trustee of it and it was not held on trust for sale during that period, it was presumptively so held, and it would be wrong, for limitation purposes to give a literal interpretation to paragraph 9 so as to make an artificial distinction between the states of affairs existing before and after the grant of administration; that the beneficial interests of the plaintiffs in the un- administered estate of their mother was a sufficient interest for the purposes of paragraph 9 of Schedule 1; and that, accordingly, no right of action accrued to the plaintiffs during the son’s and the defendant’s possession of the farm and time never started to run against them.’ (bold added)

[31]He also outlined another portion of the learned Justice of Appeal’s decision at paragraph [63]: ‘[63] Applying the reasoning in Earnshaw, if Maurice Jones had locus standi, it would have been open to the learned judge to conclude that the land in question is vested in the Chief Justice who presumptively holds it as trustee on trust for sale for the beneficiaries of the Deceased’s estate in the absence of any lawful grant of letters of administration in his estate. In that case no right of action would accrue to the presumptive trustee or beneficiaries of the Deceased’s state as against trustee or beneficiaries of the Deceased’s estate as against another beneficiary; and any possessory title claimed to the land by any beneficiary of the Deceased’s estate while the estate is un-administered must be defeated by reason of paragraph 9 of Part 1 of the Schedule of the Limitation Act.’ (bold added)

[32]Mr. Baptiste submitted that the logical conclusion is that his application for possessory title ought not to be approved by the Court. He contended however that it is necessary to examine the provisions of the Possessory Titles Act to assess whether the Administration of Estates Act and the Limitation Act shut out his application. He outlined the purpose of the Possessory Titles Act as set out in the heading of the Act and the definition of adverse possession which state respectively: ‘An Act to facilitate the obtaining of title to land by persons claiming through adverse possession’ and ‘”adverse possession”’ means factual possession of an exclusive and undisturbed nature of a piece or parcel of land in Saint Vincent and the Grenadines for a continuous period of 12 years or more accompanied by the requisite intention to possess the land as owner thereof.’

[33]He argued that the Possessory Titles Act is a relatively new piece of legislation. He set out section 3 in its entirety. That section chronicles the procedure to be followed by an applicant who seeks a declaration of possessory title. Mr. Baptiste submitted that the practice before the Act came into force was that individuals simply made a declaration of possession under the Limitation Act, regardless of capacity, and registered he document. He remarked that most financial institutions and non-financial institutions adopted a policy in later years of not accepting the declarations as proper title for security purposes.

[34]Mr. Baptiste argued that the non-acceptance intensified over the years and a number of factors including such non-acceptance led to the creation of the Possessory Titles Act. He did not provide such historical background in his affidavit. The Court is not in a position to verify the historical background to the enactment of the Possessory Titles Act. Accordingly, it may not take judicial notice of that information as articulated by Mr. Baptiste. It is therefore disregarded.

[35]Mr. Baptiste submitted that he is not making his application in any of the capacities set out in section 3. That section provides: ‘3 (1) A person who claims to be in adverse possession of a piece or parcel of land in Saint Vincent and the Grenadines shall be entitled to make an application to the Court for a declaration of possessory title to the said land. (2) Without prejudice to the provisions of the Limitation Act an application for a declaration of possessory title shall not be made in respect of Crown lands. (3) An application for a declaration of possessory title may be made by a person claiming in the capacity of executor, administrator, trustee or other person in a fiduciary relationship or capacity only for the estate or for the beneficiaries of the deceased person, as the case may be, but not in breach of the duties of executor, administrator, trustee or fiduciary. (4) For the avoidance of doubt, an application for a declaration of possessory title may be made by a person claiming in the capacity of executor de son tort, if in the opinion of the Court, the person is not in a fiduciary relationship or capacity.’ (bold added)

[36]Mr. Baptiste contended that the provision for notice and other risk-mitigating provisions of the Possessory Titles Act lend to a less restrictive application of the Limitation Act and the Administration of Estates Act. No authority was submitted to support such argument. He argued that sections 7, 8 and 9 of the Possessory Titles Act do not appear in the Limitation Act. That is so. Those sections deal with service of notice on adjoining landowners and make provision for entry of appearance by a person opposing the application.

[37]Mr. Baptiste argued that those provisions are not meant to enhance the restrictions on capacity and buttress the doctrine of non-adverse possession among beneficial co-owners of land. He submitted that rather, they are meant to expand the jurisdiction of the Court to deal with circumstances which may be burdensome and oppressive to the applicant without a non-restrictive application of capacity and degree of issue. He reasoned that they thereby fulfill the purpose of the legislation. This submission seems logical from a practical viewpoint but does no accord with the law as set out in judicial precedents. No legal authority was submitted to buttress those contentions.

[38]Mr. Baptiste contended that where a declaration of possessory title existed before the Possessory Titles Act came into force, even if it was made in circumstances where ‘other family beneficiaries exist’, neither the Administration of Estates Act nor the Limitation Act prevents the running of time against beneficial co-owners of land. I understand the pronouncement of Edwards J.A. in paragraphs

[61]and

[63]of the Luella Mitchell7 decision to be the correct statement of law. It is diametrically opposed to Mr. Baptiste’s stance. There is no parallel between this case and the example given.

[39]In that case and in the James v Williams8 case, the Courts ruled essentially that a co-beneficiary who occupies property which is part of an intestate’s estate, holds that property as a constructive trustee on behalf of the other beneficiaries. They held further that the co-beneficiary occupier could not alienate the interests of the other beneficiaries by such possession or occupation. I therefore reject Mr. Baptiste’s contrary submission. Moreover, there is no evidence that a declaration was made and registered by him or any other beneficiary before such co-beneficiary passed away.

[40]Mr. Baptiste submitted that ‘the dominant purpose in construing a statute is to ascertain the intention of the legislature as expressed in the statute, ‘considering it as a whole and in its context.’ That statement is attributed to Byron J.A. in the case of Liberty Club Limited v The Attorney General, Hon. Edzel Thomas and the Minister of Labour12. This is indeed a correct statement of the law.

[41]Mr. Baptiste argued that during the debate of the Possessory Titles Bill in the House of Assembly on 16th November 2004 the Honourable Prime Minister stated: ‘Mr. Speaker this Bill, Possessory Titles Bill is a revolutionary piece of legislation. The bill is intended to revolutionise the obtaining of land titles in St. Vincent and the Grenadines. By this measure, the Government further elaborates its public policy of turning dead property into live property …’ (Paragraph 1, Page 2 of excerpt). ‘So Mr. Speaker, you are in factual possession of an exclusive and undisturbed nature. Nobody disturbed you for twelve years and you in possession of it factually, exclusively; and you aint share the possession with anybody else, nobody aint disturb you and at the same time, you have the intention to possess the land as owner and that puts you in adverse possession and then once that is the case you go to a lawyer and the lawyer will make the application to the courts in the way in which we set out the procedure…’ (Paragraph 21, Page 7 of excerpt) And Mr. Speaker, Honourable, Honourable Members the judge will hear the matter, a certain time is put aside just in case anybody want to appeal and then you end up with your title. But you can’t go and do anything fraudulent because if you do anything fraudulent the judge will spot it because the nature of the application which you will be making …’ (Paragraph 2, Page 8 of excerpt). (bold added)

[42]Mr. Baptiste contended that the provision of notice to the world and the other risk-mitigating provisions of the Possessory Titles Act are intended to expand the Court’s jurisdiction to deal with circumstances which may be burdensome and oppressive to the applicant without a non-restrictive application of capacity and degree of issue, and thereby fulfilling the purpose of the legislation.

[43]Mr. Baptiste’s submissions were accompanied by a copy of what appears to be a record of the debates in the House of Assembly on May 3rd 2004. It was not signed by the Clerk of the House and had no endorsement which established its origin. It contained a copy of a stamp at the front and back with the words ‘Department of the Clerk of the House of Assembly St Vincent.’ It did not purport to be printed by the Government Printer.

[44]The Court is allowed to take judicial notice of the record of such debates or printed copies thereof, provided that it is established that the record is authentic. This is accomplished by supplying a copy purported to be printed by the Government Printer13. Mr. Baptiste has not provided any such or other suitable authentication. I do not doubt that the excerpts he has made available might reflect what transpired in the House of Assembly. I do not accept them as being authentic but in the interests of justice, choose not to disregard them.

[45]The excerpt does not advance Mr. Baptiste’s position. Noteworthy in the statements attributed to the Honourable Prime Minister are two utterances: 1. ‘… the lawyer will make the application to the courts in the way in which we set out the procedure…’ (Paragraph 21, Page 7 of excerpt); and 2. ‘But you can’t go and do anything fraudulent because if you do anything fraudulent the judge will spot it’.

[46]In the first case, the speaker acknowledged the legal necessity and principle that he who asserts must prove in accordance with the law. This is done on a balance of probabilities and requires that each element of the claim be established. In each case, the court is required to examine the application and supporting evidence to determine whether the applicant has satisfied the statutory and procedural requirements. The mere filing of an application will not automatically result in the grant of declaration of possessory title if the applicant fails to disclose material particulars mandated by the law or if he fails to prove each aspect of his case to the civil standard.

[47]The second statement attributed to the Honourable Prime Minister addresses the matter of fraud and implicitly captures the imperative imposed on the applicant to disclose the names of persons (to the best of his knowledge) who might have an interest in the subject property. This requirement is captured in section 4 (c) and paragraph of Form 1 in the First Schedule to the Possessory Titles Act. It incorporates the duty to inform the Court for example whether a primary or first level beneficiary had children, who survived him or her.

[48]Mr. Baptiste mentioned his siblings but did not indicate if they had children of their own. Any such child would be entitled to his or her parent’s share in the subject land pursuant to section 62 (c) of the Administration of Estates Act. Mr. Baptiste’s failure to disclose such information renders his application incomplete. The Court must remain alive to the possibility that a potential beneficiary may be deprived of an interest in the intestate’s property even where the publications in the newspaper have been made.

[49]A beneficiary may or may not even be presenting the jurisdiction and even if such person is in the jurisdiction, those facts do not negate the applicant’s duty14 to provide full information to the Court in support of his application, particularly when such matters are or should be within his or her knowledge. The Court notes that Mr. Baptiste provided information about his siblings only when asked about them by the Court and even then only in a piece meal fashion. This is to be discouraged in matters of this type.

[50]In view of the foregoing, the Court would be slow to grant the application without proof that there are no other possibly beneficiaries of Robertha Baptiste’s estate. The rules of equity require that the Court remains mindful of such persons’ interest in the estate. Such interest would not be extinguished through adverse possession of a co-beneficiary.

[51]Moreover, the law15 creates a statutory trust for sale on behalf of such beneficiaries, under which those interests are held by the Honourable Chief Justice under a presumptive trust for sale16 until Letters of Administration are extracted on their behalf.

[52]While I am satisfied that Mr. Baptiste has lived on the subject property for over 12 years, I cannot ignore the interests of his siblings and/or their estate in the subject property. Without information as to the existence of heirs to their respective estates, I am unable to find that Mr. Baptiste has satisfied the requirements of the Possessory Titles Act. I find that he has not.

ORDER

[53]It is ordered:- 1. The applicant Walter Baptiste’s application for a grant of declaration of possessory title to the parcel of land situate at Sion Hill in the Parish of St. George, in the State of Saint Vincent and the Grenadines more particularly described and delineated in Survey Order No. P291/2017 on survey plan G62/43 which was approved and lodged at the Lands and Survey Department on 29th May, 2017 by Chief Surveyor Keith Francis, is dismissed. 2. No order as to costs.

[54]I am grateful to learned counsel Mr. Cecil Blazer Williams for his written submissions.

Esco L. Henry

HIGH COURT JUDGE

By the Court

Registrar

THE EASTERN CARIBBEAN SUPREME COURT SAINT VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE SVGHPT2017/0032 IN THE MATTER OF AN APPLICATION BY WALTER BAPTISTE FOR A DECALRATION OF POSSESSORY TITLE OF LAND APPLICATION FOR DECLARATION OF POSSESSORY TITLE Appearances: : Mr. Cecil Blazer Williams of counsel for the applicant. —————————————— 2018: May 28 Jun. 25 ——————————————- JUDGMENT BACKGROUND

[1]Henry, J.: Mr. Walter Baptiste made

[2]Mr. Baptiste alleged that he lived in a house on the land with his mother Robertha Baptiste from his childhood. He testified that she passed away on January 26 th 1973 and that he continued living there after her death. He averred that he made substantial repairs to the house in 2011 when it became dilapidated and that he also fenced the property to keep out trespassers.

[3]Mr. Baptiste stated that he pays the land taxes for the property. He claimed that he picks fruit from the paw paw, golden apple and soursop trees on the property and has fenced it to keep out trespassers. He claims that he has enjoyed exclusive and undisturbed possession over the said lands in excess of 12 years and is therefore entitled to a declaration of possessory title.

[4]He did not indicate who constructed the house which he renovated. He did not say whether his mother was survived by a spouse or other children. If there were and if his mother died intestate, such persons could conceivably claim an interest in the said lands. Mr. Baptiste was invited to file written submissions to address the relevance of the Administration of Estates Act

[5]The sole issue is whether a declaration of possessory title should be granted to Walter Baptiste. ANALYSIS Issue – Should a declaration of possessory title be issued to Walter Baptiste?

[6]Mr. Baptiste provided affidavit testimony as did his witnesses Cheryl Rosemary Hannibal and his daughter Cecelia Jacqueline Williams. They testified that they are 87, 62 and 73 years old respectively. Mr. Baptiste stated that his mother died on January 26 th 1973 and that she was unmarried. He produced a death certificate in respect of Robertha Baptiste? He indicated that his mother had other children, namely Grafton Baptiste and Keitha Baptiste. He said that Grafton has passed away, but that Keitha lives at Sion Hill.

[7]Roughly a week later Mr. Baptiste filed a supplemental affidavit. He did not seek permission to do so as he should have, since he had already closed his case. The Court will consider its contents in the interest of justice. In it, Mr. Baptiste deposed that he is 88 years old and not in good health. He averred that his earlier testimony regarding Keitha’s death is not accurate. He deposed that he did not at that time recall that his sister Keitha was also dead. He averred that she is deceased and he produced a death certificate

[8]I note that she survived her mother. Mr. Baptiste did not indicate whether his sister had children who survived her. If she did, those children would be entitled to their mother’s interest in the subject property, unless she left a Will to contrary effect. There is no evidence before the Court of those matters.

[9]The referenced land at Sion Hill is delineated in Survey Order No. P291/2017 on survey plan G62/43. The survey plan which was approved and lodged at the Lands and Survey Department on 29 th May 2017 by Chief Surveyor Keith Francis. It is bounded: On or towards the North-East by lands of Rosalie Hannibal, on or towards the South-East by an access road, on or towards the South-West by lands of Michelle Wiseman, on or towards the North-West by a public road.

[10]Mr. Baptiste claimed that he has paid the land taxes since 1973. He produced a bundle of photocopied receipts issued by the Kingstown Town Board, St. Vincent

[11]Mr. Baptiste’s daughter Cecelia Williams deposed that she has lived with her father in the dwelling house on the said land from since she has known herself, until 1984 when she moved to her own house in Sion Hill. She corroborated her father’s account that he has lived on the subject property since his mother’s death, has fenced it and pick fruits from the trees there. She indicated that he left it in 2011 because of the poor condition of the property.

[12]She asserted that she knows of no one who is claiming to the owner of the property and that she considered her father to be the rightful owner. Ms. Hannibal’s testimony was almost identical. She deposed also that she owns land which has a common boundary with the subject lands.

[13]Mr. Baptiste filed a survey plan of the subject lands, a valuation report which estimated the value to be approximately $47,900.00. He filed copies of notices. They were not certified or authenticated in accordance with section 51 of the Evidence Act

[14]Ms. Valtrice Butler deposed that she is a Secretary in the law chambers of Cecil A. Blazer Williams. She stated that the law chambers caused notices of the referenced application in publications of the Vincentian and Searchlight Newspapers on Friday September 1 2017 and Friday October 13 th 2017 respectively. She did not say why the actual newspaper publications or certified copies were not tendered into evidence. Mr. Baptiste made no submissions on that point.

[15]He complied with other statutory notification requirements which stipulate that the neighbouring landowners be served with notices of his application and that copies of the notice be placed in a conspicuous place at the Magistrate’s Court in his district and at the High Court Registry office.

[16]Mr. Baptiste submitted that the application cannot be properly adjudicated on, without consideration of the Limitation Act, Cap. 129 of the Revised Laws of Saint Vincent and the Grenadines, 2009, the Possessory Titles Act, Cap 328 of the Revised Laws of Saint Vincent and the Grenadines, 2009 in relation to the Administration of Estates Act Cap. 486 the Revised Laws of Saint Vincent and the Grenadines, 2009. He rehearsed paragraph 5 of his application in support.

[17]It states: ‘The applicant has been in exclusive and undisturbed possession of the said parcel of land for over twelve (12) years as appears by the following facts: (a) The Applicant lived in the house on the said parcel of land from his childhood with his mother, Robertha Baptiste, deceased, who died on January 26 th 1973. He continued to live in the said house after her death. (b) The Applicant lived in the house until 2011 when it became dilapidated and in need of repairs. (c) The Applicant has fenced the land to keep out trespassers. (d) The Applicant picks fruits from the said land. These include paw-paw, golden apple and soursop. (e) The Applicant pays the Land and House Tax for the said parcel of land.

[18]Mr. Baptiste pointed out that paragraph 6 of the application states: ‘The Applicant claims on his own behalf ownership of the said parcel of land.’ He submitted that when a person dies intestate, his real and personal estate vests in the Chief Justice, pursuant to section 31 of the Administration of Estates Act. He submitted further that section 47 of the same Act provides that on the death of an intestate, his real and personal estate is held by his personal representative on trust for sale on the one hand and on trust to call in the same, sell and convert into money on the other hand. That indeed is the law.

[19]Mr. Baptiste referred to section 62 of the Act which provides for the children of an intestate to share equally in such estate. He argued that he is not his mother’s personal representative. He submitted that he has made no application for administration of Robertha Baptiste’s estate. He contended that she died intestate without proper title to the subject lands. It appears that she did. The Court remains mindful however that a concrete house

[20]Mr. Baptiste argued that he is one of three children and that his siblings are deceased. I accept this to be the case. He submitted that the Court should consider two situations before making a restrictive application of section 62 of the Administration of Estates Act.

[21]Mr. Baptiste contended that the provision of section 7 of the Possessory Titles Act for notice and advertisement to the rest of the world gives person entitled ‘through all degrees’ an opportunity to file an appearance thereby allowing the Act to fulfill its purpose in keeping with the intention of Parliament. This submission ignores the principle of law that a beneficiary cannot obtain adverse possession of land in breach of his trustee obligations to co-beneficiaries

[22]Mr. Baptiste submitted that sections 24 and 27 and Part 1 of the Schedule of the Limitation Act are relevant. Sections 24 (a) and 27 provide: ’24. Subject to section 23 (1) and (2)- (a) No action in respect of any claim to the personal estate (whether under a will or on intestacy) shall be brought after the expiration of twelve years from the date on which the right to receive the interest accrued …’

[23]Mr. Baptiste contended that the effect of section 27 is that the time for recovering land runs against a deceased person’s estate, regardless of whether an executor or administrator is appointed. He misconstrued the provision. In fact, that section provides that the provisions of the Act must be interpreted in such a way, that when an administrator of an intestate’s estate brings a claim to recover land forming part of the intestate’s estate, such claim would be treated as if there was no interval between the deceased’s death and the grant of letters of administration.

[24]It follows that in such a case, the administrator would not be able to rely on the provisions which afford him a grace period between those two events. This section does not assist Mr. Baptiste and does not apply to the circumstances in the instant case. Mr. Baptiste is not bringing a claim to recover any part of his deceased mother’s estate and no one has brought an action or claim against him for that purpose. The provision would not assist an administrator who is subsequently appointed to administer Robertha Baptiste’s estate. However, the position of Mr. Baptiste’s co-beneficiaries is different as explained later.

[25]Mr. Baptiste submitted that the case of Re Williams

[26]It is almost in identical terms as section 27 of the Limitation Act of Saint Vincent and the Grenadines. Stirling J. concluded that the section applied for all purposes of the Act. He opined that the parties in the case were ‘… in the same position as if the letters of administration had been granted immediately after the death of the intestate, and accordingly that time under the statute began to run as from the date of the death, and not from that of the grant.’ I accept that this is the correct interpretation.

[27]Mr. Baptiste submitted that Stephen Jordan comes to the same conclusion in his text Adverse Possession

[28]Mr. Baptiste invoked paragraphs 2 and 9 of Part 1 of the Schedule. Paragraph 2 states: ‘Where any person brings an action to recover any land of a deceased person (whether under a will or an intestacy) and the deceased person- (a) Was on the date of his death in possession of the land or, in the case of a rent charge created by will or taking effect upon his death, in possession of the land charged; and (b) Was the last person entitled to the land to be in possession of it, the right of action shall be treated as having accrued on the date of his death.’

[29]Paragraph 9 provides: ‘Where any settled land or any land on trust for sale is in possession of a person entitled to a beneficial interest in the land or in the proceeds of sale (not being a person solely or absolutely entitled to the land or the proceeds), no right of action to recover the land shall be treated for the purposes of this Act as accruing during that possession to any person in whom the land is vested as tenant for life, statutory owner or trustee, or any other person entitled to a beneficial interest in the land or the proceeds of sale.’

[30]Mr. Baptiste quoted from the judgment of Edwards J.A. in Luella Mitchell (Administratrix of the Estate of Cornelius Jones deceased) et al v Maurice Jones (Beneficiary of the Estate of Cornelius Jones

[31]He also outlined another portion of the learned Justice of Appeal’s decision at paragraph [63]: ‘[63] Applying the reasoning in Earnshaw, if Maurice Jones had locus standi, it would have been open to the learned judge to conclude that the land in question is vested in the Chief Justice who presumptively holds it as trustee on trust for sale for the beneficiaries of the Deceased’s estate in the absence of any lawful grant of letters of administration in his estate. In that case no right of action would accrue to the presumptive trustee or beneficiaries of the Deceased’s state as against trustee or beneficiaries of the Deceased’s estate as against another beneficiary; and any possessory title claimed to the land by any beneficiary of the Deceased’s estate while the estate is un-administered must be defeated by reason of paragraph 9 of Part 1 of the Schedule of the Limitation Act.’ .’ (bold added)

[32]Mr. Baptiste submitted that the logical conclusion is that his application for possessory title ought not to be approved by the Court. He contended however that it is necessary to examine the provisions of the Possessory Titles Act to assess whether the Administration of Estates Act and the Limitation Act shut out his application. He outlined the purpose of the Possessory Titles Act as set out in the heading of the Act and the definition of adverse possession which state respectively: ‘An Act to facilitate the obtaining of title to land by persons claiming through adverse possession’ and ‘”adverse possession”’ means factual possession of an exclusive and undisturbed nature of a piece or parcel of land in Saint Vincent and the Grenadines for a continuous period of 12 years or more accompanied by the requisite intention to possess the land as owner thereof.’

[33]He argued that the Possessory Titles Act is a relatively new piece of legislation. He set out section 3 in its entirety. That section chronicles the procedure to be followed by an applicant who seeks a declaration of possessory title. Mr. Baptiste submitted that the practice before the Act came into force was that individuals simply made a declaration of possession under the Limitation Act, regardless of capacity, and registered he document. He remarked that most financial institutions and non-financial institutions adopted a policy in later years of not accepting the declarations as proper title for security purposes.

[34]Mr. Baptiste argued that the non-acceptance intensified over the years and a number of factors including such non-acceptance led to the creation of the Possessory Titles Act. He did not provide such historical background in his affidavit. The Court is not in a position to verify the historical background to the enactment of the Possessory Titles Act. Accordingly, it may not take judicial notice of that information as articulated by Mr. Baptiste. It is therefore disregarded.

[35]Mr. Baptiste submitted that he is not making his application in any of the capacities set out in section 3. That section provides: ‘3 (1) A person who claims to be in adverse possession of a piece or parcel of land in Saint Vincent and the Grenadines shall be entitled to make an application to the Court for a declaration of possessory title to the said land. (2) Without prejudice to the provisions of the Limitation Act an application for a declaration of possessory title shall not be made in respect of Crown lands. . (3) An application for a declaration of possessory title may be made by a person claiming in the capacity of executor, administrator, trustee or other person in a fiduciary relationship or capacity only for the estate or for the beneficiaries of the deceased person, as the case may be, but not in breach of the duties of executor, administrator, trustee or fiduciary. (4) For the avoidance of doubt, an application for a declaration of possessory title may be made by a person claiming in the capacity of executor de son tort, , if in the opinion of the Court, the person is not in a fiduciary relationship or capacity.’ .’ (bold added)

[36]Mr. Baptiste contended that the provision for notice and other risk-mitigating provisions of the Possessory Titles Act lend to a less restrictive application of the Limitation Act and the Administration of Estates Act. No authority was submitted to support such argument. He argued that sections 7, 8 and 9 of the Possessory Titles Act do not appear in the Limitation Act. That is so. Those sections deal with service of notice on adjoining landowners and make provision for entry of appearance by a person opposing the application.

[37]Mr. Baptiste argued that those provisions are not meant to enhance the restrictions on capacity and buttress the doctrine of non-adverse possession among beneficial co-owners of land. He submitted that rather, they are meant to expand the jurisdiction of the Court to deal with circumstances which may be burdensome and oppressive to the applicant without a non-restrictive application of capacity and degree of issue. He reasoned that they thereby fulfill the purpose of the legislation. This submission seems logical from a practical viewpoint but does no accord with the law as set out in judicial precedents. No legal authority was submitted to buttress those contentions.

[38]Mr. Baptiste contended that where a declaration of possessory title existed before the Possessory Titles Act came into force, even if it was made in circumstances where ‘other family beneficiaries exist’, neither the Administration of Estates Act nor the Limitation Act prevents the running of time against beneficial co-owners of land. I understand the pronouncement of Edwards J.A. in paragraphs

[61]and

[63]of the Luella Mitchell decision to be the correct statement of law. It is diametrically opposed to Mr. Baptiste’s stance. There is no parallel between this case and the example given.

[39]In that case and in the James v Williams case, the Courts ruled essentially that a co-beneficiary who occupies property which is part of an intestate’s estate, holds that property as a constructive trustee on behalf of the other beneficiaries. They held further that the co-beneficiary occupier could not alienate the interests of the other beneficiaries by such possession or occupation. I therefore reject Mr. Baptiste’s contrary submission. Moreover, there is no evidence that a declaration was made and registered by him or any other beneficiary before such co-beneficiary passed away.

[40]Mr. Baptiste submitted that ‘the dominant purpose in construing a statute is to ascertain the intention of the legislature as expressed in the statute, ‘considering it as a whole and in its context.’ That statement is attributed to Byron J.A. in the case of Liberty Club Limited v The Attorney General, Hon. Edzel Thomas and the Minister of Labour

[41]Mr. Baptiste argued that during the debate of the Possessory Titles Bill in the House of Assembly on 16 th November 2004 the Honourable Prime Minister stated: ‘Mr. Speaker this Bill, Possessory Titles Bill is a revolutionary piece of legislation. The bill is intended to revolutionise the obtaining of land titles in St. Vincent and the Grenadines. By this measure, the Government further elaborates its public policy of turning dead property into live property …’ (Paragraph 1, Page 2 of excerpt). ‘So Mr. Speaker, you are in factual possession of an exclusive and undisturbed nature. Nobody disturbed you for twelve years and you in possession of it factually, exclusively; and you aint share the possession with anybody else, nobody aint disturb you and at the same time, you have the intention to possess the land as owner and that puts you in adverse possession and then once that is the case you go to a lawyer and the lawyer will make the application to the courts in the way in which we set out the procedure…’ …’ (Paragraph 21, Page 7 of excerpt) And Mr. Speaker, Honourable, Honourable Members the judge will hear the matter, a certain time is put aside just in case anybody want to appeal and then you end up with your title. But you can’t go and do anything fraudulent because if you do anything fraudulent the judge will spot it because the nature of the application which you will be making …’ (Paragraph 2, Page 8 of excerpt). (bold added)

[42]Mr. Baptiste contended that the provision of notice to the world and the other risk-mitigating provisions of the Possessory Titles Act are intended to expand the Court’s jurisdiction to deal with circumstances which may be burdensome and oppressive to the applicant without a non-restrictive application of capacity and degree of issue, and thereby fulfilling the purpose of the legislation.

[43]Mr. Baptiste’s submissions were accompanied by a copy of what appears to be a record of the debates in the House of Assembly on May 3 rd 2004. It was not signed by the Clerk of the House and had no endorsement which established its origin. It contained a copy of a stamp at the front and back with the words ‘Department of the Clerk of the House of Assembly St Vincent.’ It did not purport to be printed by the Government Printer.

[44]The Court is allowed to take judicial notice of the record of such debates or printed copies thereof, provided that it is established that the record is authentic. This is accomplished by supplying a copy purported to be printed by the Government Printer

[45]The excerpt does not advance Mr. Baptiste’s position. Noteworthy in the statements attributed to the Honourable Prime Minister are two utterances:

[46]In the first case, the speaker acknowledged the legal necessity and principle that he who asserts must prove in accordance with the law. This is done on a balance of probabilities and requires that each element of the claim be established. In each case, the court is required to examine the application and supporting evidence to determine whether the applicant has satisfied the statutory and procedural requirements. The mere filing of an application will not automatically result in the grant of declaration of possessory title if the applicant fails to disclose material particulars mandated by the law or if he fails to prove each aspect of his case to the civil standard.

[47]The second statement attributed to the Honourable Prime Minister addresses the matter of fraud and implicitly captures the imperative imposed on the applicant to disclose the names of persons (to the best of his knowledge) who might have an interest in the subject property. This requirement is captured in section 4 (c) and paragraph of Form 1 in the First Schedule to the Possessory Titles Act. It incorporates the duty to inform the Court for example whether a primary or first level beneficiary had children, who survived him or her.

[48]Mr. Baptiste mentioned his siblings but did not indicate if they had children of their own. Any such child would be entitled to his or her parent’s share in the subject land pursuant to section 62 (c) of the Administration of Estates Act. Mr. Baptiste’s failure to disclose such information renders his application incomplete. The Court must remain alive to the possibility that a potential beneficiary may be deprived of an interest in the intestate’s property even where the publications in the newspaper have been made.

[49]A beneficiary may or may not even be presenting the jurisdiction and even if such person is in the jurisdiction, those facts do not negate the applicant’s duty

[50]In view of the foregoing, the Court would be slow to grant the application without proof that there are no other possibly beneficiaries of Robertha Baptiste’s estate. The rules of equity require that the Court remains mindful of such persons’ interest in the estate. Such interest would not be extinguished through adverse possession of a co-beneficiary.

[51]Moreover, the law

[52]While I am satisfied that Mr. Baptiste has lived on the subject property for over 12 years, I cannot ignore the interests of his siblings and/or their estate in the subject property. Without information as to the existence of heirs to their respective estates, I am unable to find that Mr. Baptiste has satisfied the requirements of the Possessory Titles Act. I find that he has not. ORDER

[53]It is ordered:-

[54]I am grateful to learned counsel Mr. Cecil Blazer Williams for his written submissions. Esco L. Henry HIGH COURT JUDGE By the Court Registrar

[13]. Mr. Baptiste has not provided any such or other suitable authentication. I do not doubt that the excerpts he has made available might reflect what transpired in the House of Assembly. I do not accept them as being authentic but in the interests of justice, choose not to disregard them.

1.‘… the lawyer will make the application to the courts in the way in which we set out the procedure…’ (Paragraph 21, Page 7 of excerpt); and

[1]an application for a declaration of possessory title to a parcel of land situated at Sion Hill in the Parish of Saint George in the State of Saint Vincent and the Grenadines. It is approximately 2,855 sq. ft. and is depicted on survey plan G62/43. No objection was lodged against the application.

[2]to his application. He did so. The application is denied. ISSUE

[3]which records the death on 5 th May 2004 of Keitha Williams of Sion Hill. I accept that she is deceased.

[4]and the Inland Revenue Department

[5]. They appeared on the face to reflect payment of taxes for the revenue years 2011, 2002, 2003, 2004-2011, 2013, 2015, 2016 and 2017. They appeared to have been issued in June 2001, May 2002, July 2002, July 2003, October 2013, September 2015 and March 2017 respectively. The reference number on the receipts is #1/10/1/36 Sion Hill. Other receipts referred to property ID#8453PP298371. The originals were not provided to the Court for verification.

[6].

[7]sits on the said lands. I infer from Mr. Baptiste’s account that the house was built by his mother. In that regard, the mother’s interest in the house devolves to her beneficiaries, on her death, even if she had not obtained title to the land.

1.Firstly, where all siblings are deceased; and

2.Secondly, where all siblings approve of the application. There is no evidence that all of the siblings approved the application. I draw no such inference from the witnesses’ testimony. I make no finding that such approval has been granted by the referenced siblings and note that in this regard, Keitha Baptiste died over 14 years ago. It is not clear when Grafton passed away.

[8].

27.For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person shall be treated as claiming as if there had been no interval of time between the death of the deceased person and the grant of letters of administration.’

[9]is authority for the position that in relation to the Statute of Limitation 1833 time begins to run as against an administrator claiming a chattel interest in land from the date of death of the intestate, and not from the date of the grant of Administration. In delivering the judgment, Stirling J. set out section 6 of the Statute of Limitations in his judgment.

[10]on an examination of section 26 of the English Limitation Act 1980 which is the same as the local Limitation Act. As indicated in paragraph [27], this provision has no applicability to the present case. Therefore, the Re Williams case and the pronouncements by Stephen Jordan do not apply and do not advance Mr. Baptiste’s case.

[11]where she stated: ‘[61] On appeal by the defendant, dismissing the appeal, it was held: that the effect of the Limitation Act 1980 was to re-introduce the doctrine of non-adverse possession among beneficial co-owners of land, allowance being made for the trust for sale which was an inevitable feature of such ownership ; that, although the President of the Family Division was not, while the farm was vested in him, a trustee of it and it was not held on trust for sale during that period, it was presumptively so held , and it would be wrong, for limitation purposes to give a literal interpretation to paragraph 9 so as to make an artificial distinction between the states of affairs existing before and after the grant of administration; that the beneficial interests of the plaintiffs in the un-administered estate of their mother was a sufficient interest for the purposes of paragraph 9 of Schedule 1 ; and that, accordingly, no right of action accrued to the plaintiffs during the son’s and the defendant’s possession of the farm and time never started to run against them .’ (bold added)

[12]. This is indeed a correct statement of the law.

2.‘But you can’t go and do anything fraudulent because if you do anything fraudulent the judge will spot it’.

[14]to provide full information to the Court in support of his application, particularly when such matters are or should be within his or her knowledge. The Court notes that Mr. Baptiste provided information about his siblings only when asked about them by the Court and even then only in a piece meal fashion. This is to be discouraged in matters of this type.

[15]creates a statutory trust for sale on behalf of such beneficiaries, under which those interests are held by the Honourable Chief Justice under a presumptive trust for sale

[16]until Letters of Administration are extracted on their behalf.

1.The applicant Walter Baptiste’s application for a grant of declaration of possessory title to the parcel of land situate at Sion Hill in the Parish of St. George, in the State of Saint Vincent and the Grenadines more particularly described and delineated in Survey Order No. P291/2017 on survey plan G62/43 which was approved and lodged at the Lands and Survey Department on 29 th May, 2017 by Chief Surveyor Keith Francis, is dismissed.

2.No order as to costs.

[1]By Application filed on 14 th August 2017.

[2]Cap. 486 of the Laws of Saint Vincent and the Grenadines, 2009.

[3]Entered in the Register of Deaths for the Frist Registration District, Volume Year 2004, page number 37 at entry number A217.

[4]Numbered 30592, 8026, 5626, 41845 and 7980 respectively.

[5]Numbered 105270, 105273, 10467 and 60763 respectively.

[6]Cap. 220 of the Laws of Saint Vincent and the Grenadines, Revised Edition, 2009.

[7]Described in the valuation submitted with the application.

[8]James v Williams [1999] 3 All ER 309.

[9](1886) 34 Ch. D 558.

[10]Tottel Publishing Ltd. Reprinted 2008.

[11]SVGHCVAP2006/16 at paragraph [61].

[12][1996] ECLR 49.

[13]Section 40 of the Evidence Act, Cap. 220 of the Laws of Saint Vincent and the Grenadines, 2009.

[14]In accordance with section 4 (c) of the Possessory Titles Act, Cap. 328 of the Revised Laws of Saint Vincent and the Grenadines, 2009.

[15]The Administration of Estates Act, Cap. 486, section 31.

[16]Earnshaw and others v Hartley [2000] ChD. 155.