Aliethea Dickson v Devon Alexander

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT VINCENT AND THE GRENADINES SVGHPT2012/0013 IN THE MATTER OF AN APPLICATION BY FOR A DECLARATION OF POSSESSORY TITLE TO LAND BY ALIETHEA DICKSON And IN THE MATTER OF A CLAIM BY DEVON ALEXANDER (EXECUTRIX OF THE LAST WILL AND TESTAMENT OF ERMINE ALEXANDER) IN OPPOSITION TO THE SAID APPLICATION BETWEEN: ALIETHEA DICKSON APPLICANT -AND- DEVON ALEXANDER RESPONDENT Executrix of the Will of Ermine Alexander Deceased Appearances: Mr Cecil A. Blazer Williams for the Applicant, Ms Mandella Campbell and Mr Andrew Russell Counsel for the Defendant. 2015: Mar. 24 Apr. 1 & 15 JUDGMENT BACKGROUND

[1]Henry, J. (Ag.): Aliethea Dickson and Devon Alexander are cousins. Ms Dickson has applied for a declaration of possessory title of a parcel of land situated at Kings Hill in the Parish of Saint George. She claims that the land was given to her by her mother and she has been in exclusive and undisturbed possession of it for a period in excess of 12 years. Devon Alexander opposes Ms Dickson’s claim and seeks a declaration of possessory title in favour of her mother Ermine Alexander’s estate. She claims that Ermine Alexander was in possession of the land for a continuous period of 12 years and thereby became the true owner. She also seeks a declaration that Ermine Alexander would have been entitled to make a claim for adverse possession of the disputed land from 1972; dismissal of Aliethea Dickson’s application and costs. Aliethea Dickson maintains that the land was owned jointly by their grandparents Mr and Mrs Nathaniel Clairmont Thompson who died intestate survived by their eight children. Devon Alexander claims that it was owned solely by Ada Thompson and alternatively that it was owned by Ada and Clairmont Thompson jointly. Ada Thompson died 22 years before Clairmont Thompson. There is no evidence that title to the subject property was registered to either Mr or Mrs Thompson or anyone else or that Letters of Administration was extracted in respect of either estate.

ISSUES

[2]The issues in this case are three-fold: 1. Whether the subject property falls to be administered under the estate of Mrs Ada Thompson or Mr Clairmont Thompson? 2. If so, whether it can be acquired through adverse possession on intestacy by Ermine Alexander a co-beneficiary? 3. If not, whether Aliethea Dickson is entitled to a declaration of possessory title in respect of the said property? ANALYSIS Issue 1 – Does the subject property fall to be administered under the estate of Mrs Ada Thompson or Mr Clairmont Thompson?

[3]In her application Aliethea Dickson states that the land was “originally in the possession of … Clairmont Thompson, who died in 1982, and … Ada Thompson, who died in 1960…” She added that her mother Maude Jackson took possession of the land after Clairmont Thompson’s demise. She repeats this in her Affidavit in support and under cross-examination said that it was her understanding that her mother got the land verbally from her grandmother Ada Thompson but that she could not verify the accuracy of that statement as she was not present when her grandmother gave it to her mother. Mrs Maude Jackson stated that her parents Mr and Mrs Clairmont Thompson had possession of the subject land until their respective deaths and that after Clairmont Thompson’s death she took possession of it pursuant to an oral gift to her from her mother. She recounted that her mother was hospitalized for 9 days before her death and while she was in the hospital she recorded in an exercise book how the land was to be distributed, gave her the exercise book to read, read it to Clairmont Thompson and then delivered the book to Ermine Alexander for safekeeping.

[4]Aliethea Dickson’s sister Luella Jackson indicated that Clairmont Thompson was in charge of all the family lands after Ada Thompson’s death. She stated that her mother never applied for Letters of Administration of Ada or Clairmont Thompson’s estate. For her part, Cornelia Mc Kie, another of Aliethea Dickson’s sisters said under cross-examination that she heard Clairmont Thompson tell Maude Jackson that the subject land “belongs to her”.

[5]Devon Alexander stated that before her mother got the subject land, it was owned by her grandmother Ada Thompson and before her, by her maternal great grandmother Elfreda Bailey. She attested that Ada Thompson expressed a desire for Ermine Alexander to own the land and in furtherance of that understanding, Ermine Alexander assumed control possession and ownership of the land on her mother’s death. Devon Alexander’s sister Sharon Alexander testified that Clairmont Thompson told Ermine Alexander to take the land. This evidence suggests that there is agreement across the two opposing sides that the subject land was owned jointly by Mr and Mrs Clairmont Thompson at some point although they did not register their interest in it and the respective beneficiaries took no steps to seek Letters of Administration in either estate. It is worth noting that Devon Alexander’s alternative assertions that Ada Thompson alone owned the property would not affect substantially the line of succession to Ermine Alexander and Maude Jackson as they both sought to assert their respective title and interest to the property only after Clairmont Thompson’s death. At that point, any interest he or Ada Thompson had in it, ultimately passed to their children, absent any testamentary disposition.

[6]The testimonies of these witnesses provide compelling and overwhelming material from which to conclude that Mr and Mrs Clairmont Thompson each had a beneficial interest in the subject land. The evidence suggests that they held the land as tenants in common in equal shares. As both died intestate, their interest fell ultimately to be distributed on intestacy in accordance with the applicable succession law. In such case, their surviving children would be the sole beneficiaries after Mr Thompson’s death as he did not remarry. While he would have been entitled when Ada Thompson died, to 1/3 share interest in the property, if it belonged to Ada Thompson solely; on his death his interest would devolve to his children. By all accounts he enjoyed and exercised all rights of ownership over the property until his death.

[7]Until Letters of Administration are extracted in respect of an intestate’s estate, their interest in the property vests in the Honourable Chief Justice. A grantee of Letters of Administration becomes the deceased’s personal representative in relation to his real and personal property. Since no grant of Letters of Administration has been extracted in Ada Thompson’s or Clairmont Thompson’s estate, their respective interests in the disputed land property vests in the Honourable Chief Justice for the time being. On appointment of a personal representative, he or she would hold the property on statutory trust for sale. The foregoing leads me inexorably to the conclusion that the subject property falls to be administered under the estates of Mrs Ada Thompson and Mr Clairmont Thompson. Issue 2 – Can the subject property be acquired through adverse possession by Ermine Alexander, a co-beneficiary on intestacy?

[8]Aliethea Dickson’s application is premised on prior ownership of the disputed land by her mother who relies on an inter vivos oral gift from her mother Ada Thompson to her. Devon Alexander similarly, seeks a declaration of possessory title in favour of her mother Ermine Alexander’s estate based on the one hand through adverse possession and on the other hand by an inter vivos verbal gift from Clairmont Thompson. An inter vivos gift of real property must in order to have effect or create a cause of action, be evidenced by a written memorandum made by the person against whom it is to be enforced. No such writing has been produced to support the respective claims that Ada Thompson gave the property to Maude Jackson or Ermine Alexander. In the absence of such documentary proof, Aliethea Dickson’s and Devon Alexander’s reliance on an inter vivos conveyance is ineffective to pass a legal or beneficial interest by adverse possession in the disputed land to either Maude Jackson or Ermine Alexander.

[9]Likewise, even if Maude Jackson or Ermine Alexander had entered into occupation or possession of the disputed land for a period exceeding 12 years, either of them would on the undisputed facts of this case, be deemed to hold it as a constructive trustee for the other beneficiaries of Ada and Clairmont Thompson’s estates. This is because a beneficiary who enters into occupation or possession of real property which devolves on intestacy, without extracting grant of Letters of Administration is deemed to hold it on a constructive trust for the other beneficiaries. In those circumstances, equity will assist the other beneficiaries by protecting their interest from extinguishment through adverse possession by a fellow beneficiary. Likewise, while the property vests in the Honourable Chief Justice, it is deemed to be presumptively so held on a trust for sale for the beneficiaries’ benefit. In the premises, I find that neither Ermine Alexander nor Maude Jackson could establish a claim to the subject property through adverse possession. Issue 3 – Is Aliethea Dickson entitled to a declaration of possessory title in respect of the said property?

[10]An applicant for a declaration of possessory title must comply with the statutory requirements prescribed under the Possessory Titles Act. She must file an application in the prescribed form, file at least 3 affidavits in support of the application, deposed to by her and by persons who can attest to her adverse possession. She must also submit a copy of a survey plan of the subject land authenticated by the Chief Surveyor. In addition, she is required to publish notification of the application in two local newspapers, on properties adjoining the subject property, at the Registrar’s office and at the Magistrate’s court in the district where the land is located. She must also serve notices on owners of property adjoining the subject land. Non-compliance with any of these mandatory requirements within the established mandatory timelines would result in the applicant being denied a declaration of possessory title.

[11]While Ms Dickson published the notifications in the newspapers at least one month apart as required by the law, the publication in the Registrar’s office preceded the first newspaper publication and is therefore non-compliant with that specific mandatory statutory timeline. She has complied with the other requirements by filing the application in the prescribed form, filing affidavits in support to which is exhibited the requisite survey plan, publishing notices at the Magistrate’s court on adjoining properties and serving notices on adjoining land owners.

[12]Proceedings under the Possessory Titles Act are not rendered invalid for informality or irregularity of form or process. Likewise, a mistake not affecting the substantial justice of the proceedings would not invalidate such proceedings. Although Ms Dickson lodged the Notice at the Registrar’s office before the date of the first newspaper publication, I take judicial notice of the notorious fact that publication of such notices at the Registrar’s office span a period of days and often weeks. I am satisfied that the notice would in all likelihood have remained on the notice board up to and beyond the statutory mandated time period. In the premises, this oversight or mistake would not affect the substantial justice of this case and would not invalidate the application. I find that this default was a mere procedural irregularity which may be disregard as permitted by the law. I therefore disregard it.

[13]In order to obtain a declaration of possessory title, Ms Dickson must prove that she had adverse possession of the subject land for a continuous period exceeding 12 years. She would do so if she proves on a balance of probabilities that she enjoyed an “appropriate degree of physical control” over the land during that time with the intention simultaneously to own it to the exclusion of all others. Her evidence on these points is that she received the property from her mother in 1996 and that her mother was paying taxes for it from 1996 to 1999. She claims that she paid the land taxes in the name of Ada Thompson from 1999 when she started working. She exhibited 6 receipts for 2006, 2008, 2009, 2010 and 2011 and indicated that she does not know where the other receipts are. She responded under cross-examination that she has gone to the land but has not planted anything on it, erected a fence on it, put animals to graze on it, built anything on it, cut down any trees on it, cleared it or done anything on it because she was not old enough or ready, nor did she have the means to do so. She testified that she did not think it was necessary to do so as her mother was still alive. Ms Dickson also stated that she does not know if her mother planted any trees, put a coal pit, erected a fence, put animals to graze on the land or built anything on it between 1982 and 1996.

[14]Ms Dickson’s witnesses, Maude Jackson, Luella Jackson and Cornelia Mc Kie all gave evidence to the same effect. Maude Jackson admitted that Ms Dickson did nothing on the land and she herself had never planted anything on the land, grazed cattle there, built a house or erected a sign on declaring that it is her land. Mrs Jackson said that it was difficult to get people to work the land so it was cheaper for her to leave it. She agreed that Ermine Alexander planted peas on the land but in doing so she was not trespassing as it was family land on which she had permission to plant “things” for her children. Luella Jackson admitted that after her grandfather Clairmont Jackson’s death her mother never did anything on the land such as erecting a fence or planting fruits trees. She stated that her sister did not have the means to do anything with the land and it was simply left there between 1996 and 2012. Mrs Mc Kie testified that she was not sure if her mother did anything on the land other than arranging for a survey to be conducted. She also was not sure if Ms Dickson did anything on the land.

[15]It was quite clear from the testimony of Ms Dickson and her witnesses that although she might have formed an intention to own the disputed land, she exercised no effective physical control over it by excluding all others, or at all. By her own admission, she merely left the land there. She did not seem to have any knowledge or much knowledge of the condition of the land during the period for which she claimed adverse possession. Her witnesses did not advance her case and were not helpful to her cause in any way. Her assertions and those of her witnesses that she owns the land even with proof of payment of taxes for 5 years fall short of meeting the legal requirement of factual possession of the disputed land. Accordingly, I find that Ms Aliethea Dickson has failed to establish on a balance of probabilities that she has enjoyed exclusive and undisturbed possession of the disputed land in excess of twelve years. Her application for a declaration of possessory title is dismissed.

ORDERS

[16]It is accordingly ordered: Aliethea Dickson’s application for a declaration of possessory title of property situated at Kings Hill in the Parish of St. George in the State of Saint Vincent and the Grenadines, measuring 20,747 sq. ft. and delineated and described in survey plan G47/79, approved and lodged at the Lands and Survey Department on June 30th, 2009 by Chief Surveyor Adolphus Ollivierre is dismissed. Devon Alexander’s application for a declaration of possessory title of property situated at Kings Hill in the Parish of St. George in the State of Saint Vincent and the Grenadines, measuring 20,747 sq. ft. and delineated and described in survey plan G47/79, approved and lodged at the Lands and Survey Department on June 30th, 2009 by Chief Surveyor Adolphus Ollivierre is dismissed Devon Alexander’s claim for a declaration that Ermine Alexander would have been entitled to make a claim for adverse possession of the disputed land from 1972 is dismissed. Each party to bear her own costs as neither prevailed.

[17]I wish to thank both counsel for their submissions. ….………………………………… Esco L. Henry HIGH COURT JUDGE (Ag.)