Charlesworth Harrigan v Gwendolyn King

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE ANTIGUA AND BARBUDA CLAIM NO. : ANUHCV 2011/0541 BETWEEN: CHARLESWORTH THEOPHILUS HARRIGAN As Administrator of the Estate of SELVIN HARRIGAN a.k.a. SELDON THEOPHILUS HARRIGAN, Deceased Claimant AND GWENDOLYN KING Defendant Appearances: Ms. E. Deniscia Thomas for the Claimant Ms. Kema Benjamin for the Defendant ---------------------------------------------------- 2012: July 31 September 10 --------------------------------------------------- THE CLAIM

[1]Thomas W.R. Astaphan J.: This is a Claim for the following Reliefs: a) “Possession of land registered and described as: Registration Section: Bendals; Block: 51 1887C; Parcel: 14 b) Damages for trespass c) Interest on any amounts found due to the claimant d) Legal Fees e) Costs f) Any other remedy as to the Court seems just.” THE FACTS

[2]The facts in this Claim are “hotly” disputed.

[3]The Claimant, in his Witness Statement (which had been deemed to be evidence-in-chief), and in his oral comments thereon, stated the following: i). That he is the lawful son of Selvin Harrigan, also known as Seldon Theophilus Harrigan, late of Bendals Village in the Parish of St. Mary island of Antigua, in the State of Antigua and Barbuda, and is entitled to a share of his estate. ii). That the Defendant, whom he knew since he was eight years old, and her children live in houses on Parcel 14 despite the fact that, as Personal Representative of his father’s Estate, he has served upon them Notice to Quit. iii). That the Defendant was a bare Licensee of his father, and therefore that Licence terminated with his father’s death and, at any rate, when the Notice to Quit was served. iv). That after his father died in April, 2007, the Defendant’s daughter, Jamica, built a house on Parcel 14 and, the Defendant caused a house to be built thereon for her handicapped son Swain. v). That the Defendant first entered upon the land as an invitee of his father, then sometime after she brought two of her children, namely Swain and Magda, to live with them at Bendals Village. He alleges that Jamica lived elsewhere until after his father died in April, 2007. vi). That he lived with his father and grandmother at Bendals Village until he was five years old when, after his grandmother died, he went to live with his aunt and her family at Bendals Main Road. vii). That he enjoyed a very good relationship with his father and would visit him every afternoon after school, and would visit him on weekends and on holidays. Sometimes he would stay overnight, but most times he went home to Bendals Main Road late in the evening and would return early the next morning. viii). That if he slept at his father’s home, he would sleep in his late grandmother’s room. The Defendant would sleep in a chair in the living room, and her children would sleep in a room in the yard that was used to store his toys when he was a boy. ix). That as an adult he would, from time to time, buy food, Complan, Ensure, Dutch Lady milk powder and Locozade for his father. x). That his father would always say that the property belonged to his [the Claimant’s] grandmother, and he [his father] came and, got it [the property] and when “…he gone the property will come to me. He used to say, nobody can come in front of you – referring to me. That is why I know to myself that no such contract as alleged by [the Defendant] could have existed. ” xi). At paragraph 15 of his Witness Statement the Claimant says this: “…I know that Gwendolyn King and my father had a relationship. She is not his wife and she does not have any children for him. They were merely man and woman living together.” xii). “I don’t have no notice of [Bernard Warner living with his father, the Defendant, and her children from 2006 to 2007]. All I know that when I go to visit my father I see him there. Mrs. King has a disabled son and I see Mr. Warner talking, skylarking watching t.v. with the child. I don’t know him to be living with my father. I wasn’t aware of him living with my father.” xiii). In reply to the question whether the Defendant was telling the truth when she stated in paragraph 25 of her Witness Statement that no family members had moved onto the land since his father died, and that when she moved to Bendals her three children had moved there with her, the Claimant replied: “No family members [of the Defendant] moved onto the land since the Notice to Quit was served.” xiv). His Counsel, hearing the proverbial cock crow three times, then repeated the question as to whether or not the Defendant was correct in paragraph 25 of her Witness Statement when she alleged that “I have been accused of allowing my whole family to move onto the land since being served with the Notice to Quit. That too is not true. I moved to Bendals with my three (3) children and my eldest daughter Magda was seven (7) months pregnant when we moved. Seven (7) grandchildren and a great grandchild were born on the land during Mr. Harrigan’s lifetime. Another grandchild was born after his death. No family member has moved onto the land since Mr. Harrigan died.” The Claimant this time, having being given a second opportunity by his Counsel, answered that “…it is not true because after my father died a daughter named Jamica moved there.”

[4]In Cross-Examination the Claimant said as follows: a) That he had moved from his father’s home to live with his aunt at age 5. b) That he would try to visit his father on weekends and holidays. c) That it is not true that his aunt prevented him from visiting his father. d) That his aunt would not beat him because he tried to visit his father. She would beat him for coming home from school late. “Sometimes I would see my father on the road and I would talk to him.” e) That it is not true that between the ages of 5 and 15 he did not visit his father. Further, the Claimant insisted that Jamica did not live with his father and her mother, but only moved in when his father had died. When asked how he became aware that Jamica had moved there he answered “By family members, and seeing her there after my father had died.” [I will state now that this is equally consistent with the allegation of the Defendant that the Claimant very seldom, if ever, used to visit his father. He would become personally aware that Jamica “had moved there” only when he actually went there. If he was only personally aware that she had moved there after his father’s death, it could well be that he was very seldom, if ever, there before his father’s death. He could have been made aware by family members that she had moved there before his father’s death.] f) When asked whether he had become aware of the fact that the Defendant was building chattel houses on the land by being told or by seeing it for himself, he answered “both.” [I make the same observation as above.] g) Rather telling were the Claimants answers to the questions: (i) if he knew that his father had given Jamica permission to live on the land, and (ii) If he knew that his father had given permission to the crew of the Bookship “Logos II” to build a house on the land for Swain. To these questions his answers were: “I was not aware of that,” and “I don’t know of that.” In fact, twice did he say that he didn’t know about his father giving the “Logos II” crew permission to build Swain’s house. Why would he not know if he visited his father regularly? If he had the close relationship which he says that he did with his father? If either of those assertions were true, the Claimant would have been able to give evidence of his father telling him that he either did, or did not, give permission to both Jamica and the crew of the bookship “Logos II”.

[5]I observed the Claimant in the Witness Box. I saw his demeanor. He was shifty. He was cagey with his answers. He appeared to know little or nothing about his father or his father’s life. He was acting on what he had heard from other persons none of whom are known to this Court. They did not give Witness Statements, and they did not give evidence at the trial.

[6]I am irresistibly lead to the considered opinion that Mr. Harrigan was a witness who was being stringently economical with the truth. He appeared to this Court, for the most part, to be giving convenient evidence, as opposed to factual evidence.

[7]Violet Martin then gave evidence for the Claimant.

[8]In her Witness Statement (which had been deemed to be evidence-in-chief) she said: (a) “3. I don’t live far from the property in issue. Originally Maria Lewis lived there and then after her son, Selvin Harrigan came from England he moved in with her. Later, he became involved with a woman with whom he had the child, Charlesworth Harrigan, who is also known as Teddy [the Claimant]. I was close to the family. Teddy is my godson.” (b) “4. Selvin later became involved with Gwendolyn King (Gwen) [the Defendant]. I knew Gwen before this time because I lived for a time in Ottos New Town and Gwen usually frequented the neighbours who were strong drinkers and she would drink with them. Selvin was also a strong drinker.” (c) “5. Gwen did not move into the house until after Aunt Baby died [Aunt Baby was Selvin’s mother, Maria Lewis]. She might have visited occasionally but she was not living there. I can recall this because after Gwen moved in I have had to break up several fights between herself and Selvin or go over to the house and use my authority to stop them from breaching the peace in the neighbourhood.” (d) “6. Through all the years I have known Selvin Harrigan, I have never heard him say to me or to anyone else that Gwen was to remain in the house for the rest of her life. In fact, he has stated the opposite, especially when they were fighting. Further, given how I know he felt about his son, it would be highly unlikely that he would allow anybody other than Charlesworth Harrigan any control over his mother’s property no matter for how short a time.” (e) Violet Martin did not sign her Witness Statement. (f) Her evidence in the Witness Box was formal evidence to introduce her Witness Statement into evidence. (g) Then she was cross-examined. [8] In Cross-Examination Ms. Martin, in answer to Ms. Kema Benjamin’s questions, said the following– (a) Q. “What was the nature of your relationship with Mr. Harrigan?” A. “Hi and Bye; no close relationship.” (b) Q. “He ever came to you and discussed personal matters?” A. “He had never discussed anything personal with me.”

[9]It is clear to this Court that Ms. Martin’s evidence–in-chief is, at its highest, unreliable. This is so because she did not impress this Court that she was being forthright, even when simply explaining why she was unable to personally sign her Witness Statement.

[10]Her answers in cross-examination confirmed to the Court the degree of unreliability.

[11]In fact, her said answers completely strip her evidence-in-chief of any semblance of believability. I therefore reject her evidence.

[12]The Defendant, Ms. King, gave evidence. Her Witness Statement had been deemed to be evidence-in-chief. She commented on her evidence–in-chief. She was Cross-examined by Ms. Thomas.

[13]This is what she said in chief: (a) That she was forty years old when she met Selvin Harrigan, and he was fifty-five years old, and their relationship began in or around May, 1992. (b) That when she met Selvin’s mother, Maria Lewis, Ms. Lewis wanted her to “stay with them but [she] could not because she had her own family to take care of and [she] had a job.” (c) That she first went to live with Selvin and Maria in 1992. (d) That she returned to her home in Potters on 31st December, 1992. (e) That on 2nd January, 1993 Selvin’s cousin removed Maria from their home and took her to Cashew Hill, where three weeks later Maria died. (f) That one day in January 1993, Selvin contacted her [Gwendolyn] and told her that Maria wanted to return to Bendals Village and that she wanted Gwendolyn to clean the house for her return. (g) That on or around 28th January 1993, Selvin asked her to accompany him to Bendals Village to clean his house as his mother, Maria, was returning that very day. Gwendolyn took her daughter Magda, who was seven months pregnant, her daughter Jamica, and her son Swain who was wheelchair bound, to Bendals Village with Selvin. (h) That on the way to Bendals Village Selvin visited Maria at Cashew Hill. (i) That they went to Bendals Village and cleaned the house. At about 6 p.m. they had finished cleaning the house and were waiting to go back to Potters Village when a man called Spanky came to the house and informed Selvin that his mother had died. (j) That Selvin did not take his mother’s death well. He had always drunk alcohol, but his mother’s death made him drink more. (k) That soon after his mother’s death, Selvin became ill and asked Gwendolyn to stay with him until his health improved. Gwendolyn told him that she had her life in Potters so she could not stay, and Selvin asked her to relocate to Bendals Village permanently with her children, as he did not want to be on his own. (l) That Selvin told her that she could live on the land for the rest of her life and no one could move either her or her children off the land. (m) That she gave up her house in Potters Village and relocated to Bendals Village with her children to live with Mr. Harrigan. That she moved to Selvin’s home in reliance on his assurance that she could reside there for the rest of her life. (n) That she was “his live-in girlfriend.” (o) That she has lived with her children on that land as their home for the past 19 years. (p) That she has been accused of building a number of chattel houses on the land since she was served with the Notice to Quit. That is not true, she says. There are three dwelling houses on the land and they were all built during Selvin Harrigan’s lifetime. (q) One such house is the main house constructed by Mr. Harrigan and occupied by Mr. Harrigan, Gwendolyn and her children. Another is a house built by Jamica with Selvin’s permission, which permission she obtained in or around August, 2005. The third house is one constructed by the crew of the bookship “Logos II”, with assistance from members of the community and Mr. Bernard Warner, the President of the Antigua and Barbuda Association of Persons with Disabilities, for Swain Burton, Gwendolyn’s son who was born with cerebral palsy. (r) One day in 2005 or 2006, Selvin asked Mr. Warner, who was visiting, if Mr. Warner could assist in getting a house suitable for a disabled person built on the land for Swain. Selvin was concerned that Swain needed a house that could accommodate Swain’s disabilities. (s) A few months after Mr. Warner returned with the crew of “Logos II”. They spoke to Gwendolyn and Selvin about their plans of building the house for Swain, They asked Selvin if he was consenting to them building the house for Swain on his land. He agreed to it. He allocated portion of land for them to build the house for Swain. The house was built by the crew of “Logos II”, volunteers and some of Mr. Warner’s friends from the Grays Green Community. (t) The building of the house for Swain was published in the Media. The “handing over ceremony” was televised on the State-owned television station, ABS Television. The local daily newspaper, “The Observer”, reported on it. This was in 2005/6. (u) That the land in question is ghut land where all the water from Buckleys Village passes through. Whenever it rained heavily the land would flood. With Selvin’s concurrence Gwendolyn planted coconut and banana tress to help with the flooding. The land was overgrown with bush which Gwendolyn cleared. It took her nine weeks to clear the land of the overgrowth. (v) That she worked very hard to clear the land, and even lost apart of one of her fingers working the land. (w) That for all the years in which she lived with Selvin, none of his family members ever visited him. Gwendolyn, her children and her grandchildren took care of Selvin until the day he died. (x) That Gwendolyn, her children and grandchildren had quiet enjoyment of the land until Selvin died. (y) That once Selvin died, the Claimant has done everything he could to get Gwendolyn off the land. (z) That Selvin had always told Gwendolyn, in the presence of other persons, that she could live on the land forever and no one could move her.

[14]In commenting upon her Witness Statement Gwendolyn said the following – a) That it was not true that the Claimant always had a good relationship with his father. b) (b) That it is not true that the Claimant visited his father every afternoon after school while the Claimant was a student at Bendals Primary School. She further stated that there was no relationship between Selvin and the Claimant. This I take to mean, in the context of her evidence, and having seen her give her evidence, that Selvin did not have a close relationship with the Claimant. c) That it is not true that the Claimant would visit Selvin every weekend and on holidays. d) She stated that on one occasion she had seen the Claimant on the eastern side of the school and she called Selvin to show him the Claimant. She then called the Claimant, shouting “Teddy, Teddy”. Teddy, who was then six years old, came running over to Selvin and Gwendolyn. Selvin had a conversation with Teddy and gave him $50.00. Teddy put the money in his school bag and went back to school. e) The next day they saw Teddy again. They called him. He appeared to be scared. They kept calling him. He came to the fence. Selvin asked him why he didn’t come the first time they called him. “Teddy told us that someone went and told Aunt Vi that he was speaking to us and Aunt Vi beat him. And we haven’t seen him until nine years later when he was 15 years old.” f) Gwendolyn denied that the Claimant stayed overnight at their home. She said that the Claimant “…never slept there for the time I had been there. Never, not for even one night. There was no chair in the living room. The children never slept in a room in the yard.” g) In response to the Claimant’s statement that he used to give his father food, Complan etc., Gwendolyn said “This is not true. Mr. Harrigan [Selvin] would take care of the bills and I took care of the domestic part. The food, and everything else.”

[15]Gwendolyn was then cross-examined by Ms. Thomas, the relevant parts of which are as follows-. (a) Q. “Your relationship with Selvin started the same day you met him?” A. “Yes, May 4th 1992.” (b) Q. “After Selvin died, did you not thereafter tell the members of his family not to come there on the land?” A. “No. For the 20 years I living there I never see none of them people come there except for the night his mother died when they came and take up everything.” (c) Q. “Put to you that the house built by “Logos II” was built after Selvin died.” A. “No. It was built before he died.”

[16]Having carefully observed the Defendant while she gave her evidence, I found her to be an honest and very credible witness. Her demeanor on the witness stand was such that I got the distinct impression that she was being frank and honest. She appeared to be a sober person of considerable intellect, despite the allegations by the Claimant that she is an alcoholic. Her drinking habits are none of the business of this Court. I do say, however, that, whatever they may be, she impressed me as an honest, forthright and intelligent witness. I accept her evidence as being truthful, particularly because it appeared to be imperfect, in that it contained slight immaterial errors. It appeared to be that of a person telling the truth as it is. I was impressed by her forthrightness.

[17]Bernard Warner gave evidence. He was cross-examined by Ms. Thomas. He remained consistent in his testimony. His evidence with respect to the construction of the house for Swain, corroborated the evidence of the Defendant in every material particular. He said that the house for Swain was built in 2006. I accept that as a fact. Selvin died in 2007. Mr. Warner impressed me as being an honest and forthright witness. I accept his evidence as being truthful.

[18]Jamica Burton gave evidence. She was cross-examined by Ms. Thomas. She confirmed that, after Maria had died when Selvin was speaking to Gwendolyn about coming to live with him, she had heard Selvin tell the Defendant that she, Gwendolyn, could live on the land for the rest of her life. She admitted that Selvin was very drunk when he said that. [I heard no evidence that Selvin was drunk everyday of all those years during which Gwendolyn and her children lived with him. The inference is clear.]

[19]She stated that she did not know the Claimant well. That he used to visit on Sundays, but not every Sunday. That she lived on the property from the time that she moved there with her mother, brother and sister after Maria’s death. That she never “moved” away.

[20]It was put to her that she had moved from Selvin’s home several years before his death. She denied this. She admitted that sometimes she would sleep at her boyfriend’s house at All Saints, but insisted that she never moved away from the land at Bendals Village. [Sleeping at her boyfriend’s house from time to time is not inconsistent with her living continuously at Bendals Village with Selvin and the family. I so find.]

[21]She was asked if in 2009 she went to Bendals to register? [as a voter]. She said no, she had registered in 2003/4 in Bendals when the Voter I.D. Cards were introduced.

[22]She said that Selvin gave her permission to build her home on the land. In fact, she said, she had asked to build it by the mango tree on the land and Selvin had said no, because it would be too close to the road. He told her to build it down by where the pig pen was, and that is where she built her home.

[23]I observed Jamica in the Witness Box. I observed her demeanor. I was impressed by the frankness of her responses to questions. She did not hesitate to admit that, after Maria had died Selvin was “very drunk” when he told her mother that she could live on the land for the rest of her life. She appeared to me to be a witness of truth. I accept her evidence as being the truth. She corroborates both Gwendolyn’s and Mr. Warner’s evidence in the material particulars.

[24]Where there are conflicts between the evidence of the Claimant and Ms. Martin, on the one hand, and the Defendant, Mr. Warner and Jamica on the other hand, I accept the evidence of the Defendant, Mr. Warner and Jamica as being the truth. I, having keenly observed both the Claimant and Ms. Martin when they were giving evidence, do not accept either of them to have been truthful witnesses. Where ever their evidence conflicts with that of the Defendant, Mr. Warner or Jamica, I reject their evidence and accept that of the Defendant, Mr. Warner and Jamica as being the truth.

[25]Based upon the evidence which I have accepted, and inferring from those facts other facts which are inexorable and axiomatic, I find the following to be Facts in this case:- (a) That Gwendolyn and Selvin had a relationship since May, 1992. (b) That Selvin asked her to come to live with him and to bring her family along her children, Magda, Swain and Jamica. (c) That in 1993, shortly after Selvin’s mother, Maria, died, Selvin asked them to come to live with him permanently, and they did. (d) That Selvin and Gwendolyn had a common law relationship akin to that of husband and wife. That she took care of all the domestic needs of the household. That her daughters helped her and Selvin like children would help parents. (e) That Selvin treated Gwendolyn’s children as if they were his own. (f) That Selvin did in fact tell Gwendolyn that she, along with her children, could live on the land for her entire life, and that no one could move them from there. (g) That Selvin did initiate the idea of building of the house for Swain, and did in fact give permission for it to be built. (h) That Selvin did in fact give Jamica permission to build her house on the land, and did tell her exactly where to place it. (i) That Gwendolyn and her children took care of, and planted trees on the land to diminish the flooding, thereby improving the land. (j) That the Claimant was, at best, an infrequent visitor to his father’s home who never slept over. (k) That the Claimant never had a close relationship with his father. That his father never told him that parcel 14, the land, was to be his, the Claimant’s, after his father died. (l) That, based upon the above facts, it is easily and reasonably inferred that Selvin intended Gwendolyn and her children to make their homes on the land, to live there with their children and not to be disturbed at any time by anyone. I find that to be a fact. (m) That the Defendant and her three children, her seven grandchildren and her great-grand child have been living in peaceful and undisturbed possession – save for those born on the land after the Defendant and her children moved there, and, in the case of those born on the land, from the times of their births – since 1993, until after the death of Selvin when the Claimant, in his quest to get them off the land, began to disturb them. I find as a matter of fact, on the evidence which I have accepted, that Selvin, Gwendolyn, Jamica and Swain were in continuous joint possession and occupation of parcel 14 from 1993 up to the day of Selvin’s death, and continue to be so. (n) I find as a fact, inferred from the accepted facts of his words and conduct, that Selvin intended that the Defendant, Swain and Jamica have an interest in the land. It was there home from 1993, and he wanted it to continue to be their home after he died. He did not have the benefit of a Lawyer. Neither did the Defendant. They dealt with the land, and with their family relationship, as too often happens in relationships of their kind. In Good Faith, and perhaps in ignorance of what the legal requirements are so as to manifest Selvin’s inferred intention. He died intestate. Perhaps not knowing what was legally required to concretize his intentions as I have found them to be. (o) All is not lost, however. There is Equity.

[26]Based upon my findings the Claimant’s Claim is dismissed.

[27]The Defendant Counter-claimed for Damages for breach of Contractual License. I find as a fact and as a matter of Law that there was no such Contractual License. There was initially a bare licence [the Claimant accepted the existence of such in his Statement of Claim] which, for reasons which follow, was, in equity, transformed.

[28]The Claimant submits that the Defendant did not claim Declaratory relief and ought not to be afforded any such relief. She must stand or fall on her prayer for Damages for breach of contractual license, says he!

[29]However, the Claimant also counter-claimed “Such further relief as this honourable Court deems fit.” What is the effect of my findings of fact?

[30]Section 20 of the Eastern Caribbean Supreme Court Act, CAP 143 of the Laws ofAntigua and Barbuda, reads as follows:- “20. The High Court and the Court of Appeal respectively in the exercise of the jurisdiction vested in them shall in every cause or matter pending before the Court grant either absolutely or on such terms and conditions as the court think just, all such remedies whatsoever as any of the parties thereto may appear to be entitled in respect of any legal or equitable claim or matter so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of these matters avoided.”

[31]The conjunctive effect of the Defendant’s claim as set out in paragraph [29], and Section 20 above, acting in harmonious concert with the overriding principle of CPR 2000, gives this Court the jurisdiction to provide relief and a remedy to the Defendant/Counter Claimant.

[32]Even without any of those three items, I would have been prepared to issue the requisite Declarations and Orders so as to ensure that Justice was done in this case.

[33]I have found that the Defendant was in possession and occupation of the land, jointly with her children and with Selvin during the period 2003 to 2007 when he died, and continually thereafter and, having found that Selvin gave permission for Swain’s house and Jamica’s house to be built on the land; and

[34]That, Initially, the defendant and her children had a revocable Licence. Not a contractual licence. They initially came onto the land on the understanding that they would be there at least for the life of Gwendolyn. The relationship between Selvin and Gwendolyn and her children have all the hallmarks of a family relationship. A stepfather dealing with his stepchildren and with his common law wife as any father would with his natural children and wedded wife. I hold that all this was transformative of that revocable licence.

[35]They uprooted themselves and left Potters Village to go to Bendals Village at the request of Selvin to live with him. They have lived there ever since 1993. Grandchildren and a great-grand child were born there. They worked the land by cleaning and planting like any family unit would do. Gwendolyn took care of the domestic needs of the household. Like any wife would do. Selvin initiated the process that caused Swain’s house to be built. He gave Jamica permission to build her house, even telling her where to locate it so that it not be too close to the road.

[36]All of this clearly shows that Selvin not only treated Gwendolyn as he would his lawfully wedded wife, but the children and grandchildren as if they were of his blood.

[37]In the case of Yeoman’s Row Management Limited and Another v Cobbe1, Lord Scott of Foscote says this:- “…I want first to consider as a matter of principle the nature of a proprietary estoppel. As “estoppel” bars the object of it from asserting some fact or facts, or, sometimes, something that is a mixture offact and law, that stands in the way of some right claimed by the person entitled to the benefit of the estoppel. The estoppel becomes a “proprietary” estoppel – a sub-species of a “promissory“ estoppel – if the right claimed is a proprietary right, usually a right to or over land…. So, what is the fact or facts or the matter of mixed facts and law, that in the present case, the appellant is said to be barred from asserting? What is the proprietary right claimed by Mr. Cobbe that the facts and matters the appellant is barred from asserting might otherwise defeat? …And what proprietary claim was Mr. Cobbe making that an estoppel was necessary to protect?”

[38]At paragraph 16 Lord Scott continues: “My Lords, unconscionability of conduct may well lead to a remedy but, in my opinion, proprietary estoppel cannot be the route to it unless the ingredients for a proprietary estoppel are present. These ingredients should include, in principle, a proprietary claim made by a claimant and an answer to that claim based on some fact, or some point of mixed fact and law, that the person against whom the claim is made can be estopped from asserting.”

[39]“What is the fact or facts, or the matter of mixed fact and law, that in the present case, the [Claimant] is said to be barred from asserting.” The legal rights attached to the Estate of Selvin Harrigan, deceased, being, or being entitled to be the Registered Proprietor of Parcel 14. “What is the proprietary right claimed by [Gwendolyn King] that the fact and matters the [Claimant] is barred from asserting might otherwise defeat?” That of being a Licensee coupled with an expectation, on the facts found in this case, to have been encouraged by Selvin Harrigan that she, together with her children, could live on Parcel 14 for the rest of her life, at the very least.

[40]Lord Scott pointed out that in Taylor Fashions Ltd. v Liverpool Victoria Trustee Co. Ltd2. “Oliver J, as he then was, stated the requirements of promissory estoppel in a “common expectation” class of case in a well-known and oft cited passage…”if A under an expectation created or encouraged by B that A shall have a certain interest in land, thereafter, on the faith of such expectation and with the knowledge of B and without objection by him, acts to his detriment in connection with such land, a Court of Equity will compel B to give effect to such expectation.” I find that in this case there was such an expectation and that Gwendolyn and her children acted to their detriment on the basis of this expectation.

[41]In Yeoman’s Row, Lord Scott addressed the case of Plimmer v Mayor of Wellington3, a case on proprietary estoppel, thus: “…the question was whether the appellant, Mr. Plimmer, had a sufficient “estate or interest” in the land to qualify for statutory compensation when the land became vested in the Wellington Corporation. Plimmer had occupied the land under a revocable licence from the Corporation’s predecessor-in-title and at the request of that predecessor-in-title had made extensive improvements in the land. The Judicial Committee held that these circumstances “were sufficient to create in his [Plimmer’s] mind a reasonable expectation that his occupation would not be disturbed…” In effect the owner of the land became estopped from asserting that the licence remained revocable. That was sufficient to constitute the licence an “estate or interest” for compensation purposes…” I apply this principle to the facts as I found them in the case at bar.

[42]Lord Scott referred to the case of Inwards v Baker [1965] 2 QB 29 in his Judgment in Yeoman’s Row at paragraph 22 thus:- “…was a case in which an indulgent father had encouraged his son to build a bungalow on his, the father’s, land. The son had done so in the expectation, encouraged by his father, that he, the son, would be permitted to remain in occupation. The Court of Appeal held that the son had an equity entitling him to live in the bungalow as long as he wished. In effect the father, and after his death the trustees of his will, were estopped from denying the son’s licence to occupy the land was an irrevocable one. The case was on all fours with Plimmers case, which was relied on by both LordDenning M.R. (36/37) and by Danckwerts LJ (38) in their respective judgments. The principle that, if A, an owner of land, encourages B to build on his, A’s, land on the footing that B will be entitled thereafter to occupy the new buildings, is undoubted good law…” I Hold that in the facts of this case the principle of law enunciated in Inwards v Baker (supra) applies to the licence granted to Gwendolyn, Swain and Jamica.

[43]I apply the principles of Law set out in the aforesaid cases.

[44]I Hold as a matter of Law that the Defendant, her son Swain Burton and her daughter Jamaica Burton hold irrevocable licences over Parcel 14. They do so jointly. This irrevocable licence constitutes an interest in Parcel14, is perpetual, and is capable of being noted on the Register for Parcel 14. I so DECLARE.

[45]The Registrar of Lands is directed to make the necessary notation on the Register for Parcel 14. I so Order.

[46]Each party is to bear their own Costs in this matter.

Thomas W.R.Astaphan

High Court Judge [Ag.]

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE ANTIGUA AND BARBUDA CLAIM NO. ANUHCV 201110547 BETWEEN: CHARLESWORTH THEOPHILUS HARRIGAN As Administrator of the Estate of SELVIN HARRIGAN a.k.a. SELDON THEOPHILUS HARRIGAN, Deceased Claimant AND GWENDOLYN KING Defendant Appearances: Ms. E. Deniscia Thomas for the Claimant Mr. Hugh Marshall Jr. and Ms. Kema Bemjamin for the Defendant 2012: February 28 April 4 JUDGMENT

[1]MICHEL, J.: By Fixed Date Claim Form and Statement of Claim filed on 24th August 2011, the Claimant (Charlesworth Theophilus Harrigan, as Administrator of the Estate of Selvin Harrigan, also known as SELDON Theophilus Harrigan, Deceased) claimed against the Defendant (Gwendolyn King) for “Possession of land situated at Bendals in the Parish of St. Mary and more particularly described and registered as: Registration Section: Bendals; Block: 511887C, Parcel: 14 and for Damages for trespass

[2]By Defence and Counterclaim filed on 21 st October 2011, The Defendant joined issue with the Claimant on some of the averments in the Statement of Claim and counterclaimed for damages for breach of acontractual licence.

[3]By application filed on 8th November 2011 with affidavit in support) the Claimant applied to the Court to strike out the Defence and Counterclaim and to enter judgment for the Claimant on the grounds that – (1) the Defence does not disclose any defence known to law, (2) the Counterclaim does not disclose any reasonable ground for bringing the claim and (3) the matter can be dealt with summarily.

[4]when the case before the Court on 11th November 2011, leave was given to the Defendant to file and serve any affidavit(s) in response to the Claimant’s application on or before 2nd December 2011 and to the Claimant to file and serve any affidavit(s) in reply on or before 23rd December 2011.

[5]On 7th December 2011, five days after the stipulated deadline, the Defendant filed an affidavit in response to the Claimant’s application of 8th November 2011. No affidavit in reply was filed by the Claimant.

[6]the Claimant’s application came up for hearing in Chambers on 28th February 2012 and oral submissions were made by Counsel on behalf of the parties.

[7]Ms. E. Deniscia Thomas, appearing on behalf of the Claimant. argued that the Defence and Counterclaim are based on the allegation by the Defendant that she was a contractual licensee of the Deceased (Selvin Harrigan, also known as Seldon Theophilus Harrigan) but that a contractual licence arises only when there is a contract between the licensor and the licensee and the licence is a provision of the contract. She argued. however, that there is no evidence to support the existence of such a contract in this case. that there is no evidence of any consideration or of any agreement intended to be binding, and that the only evidence is the evidence of an alleged discussion between a man and woman involved in an intimate relationship which (even if proved) would not bind the Estate.

[8]Ms. Thomas submitted that the Counterclaim fails on the same basis as [the Defence. she further submitted that any licence which the Defendant had to remain on the land was a bare license which ended with the death of the Deceased and that the Defendant was also given notice to quit the land after the death of the Deceased.

[9]Mr. Hugh Marshall Jr., appearing on behalf of the Defendant, argued that the test to be met is, that the Defence has no reasonable prospect of success and that This is not the case here. He submitted that it is clearly pleaded in paragraph 10 of the Defence that the Defendant is an individual in actual possession and has an overriding interest by reason of section 28 (g) of the Registered Land Act1. He submitted that the overriding interest of which the Defendant speaks is that of contractual licence, as pleaded in paragraph 8 of the Defence. He argued that one must look at the circumstances to see what the licence was and that, according to paragraph 9 of the Defence, the Defendant’s licence was for her life and it remains a matter of evidence for the Court leap 374 of the Laws of Antigua and Barbuda Revised Edition 1992 to make a determination on that issue. He argued that the averment that the Defendant was to be allowed to remain on the property for life stands unchallenged and the Court must act on the pleadings before it. Mr. Marshall cited the case of Patel v Patel (decided by the English Court of Appeal in 1983) in support of his submission that the onus of proving that acontractual license was not in fact that which it says it is, is not upon the person asserting the contractual license but upon the landowner.

[10]Mr. Marshall also submitted that the Claimant had not met the required test for striking out of a defence and that this case ought to go to trial for the determination (on the facts) of the nature of the Defendant’s licence.

[11]Following the submissions by Counsel, the parties were ordered to file authorities In support of their submissions by 2nd March 2012, which both parties duly complied with.

[12]On The basis of the statements of case of the parties (the Fixed Date Claim Form, the Statement of Claim and the Defence and Counterclaim) this case concerns the occupation by the Defendant of property owned by the Claimant, which occupation the Claimant purported to terminate by the revocation of what the Claimant contends is a bare licence, but the termination of which the Defendant resists on the basis that her occupation of the property is as a contractual licensee entitled to possession of the property for the remainder of her life.

[13]the Claimant has made an application to strike out the Defendant’s Defence and Counterclaim and to enter judgment for the Claimant on his claim. of course, if The application is decided in favour of the Claimant, it. follows That judgment in the case will be entered for the Claimant as per his statements of case and the case will come to an end. If however the application is decided in favour of the Defendant, then the case will continue to trial.

[14]As submitted by Learned Counsel for the Defendant, in order to determine the application in the Claimant’s favour, The Court must be satisfied (on a balance of probability) that the Defendant’s Defence has no reasonable prospect of success.

[15]The Defendant’s defence is that she was the live-in girlfriend of the Deceased and that, “After living with the Deceased off and on at his home in Bendals, the Deceased asked her to relocate permanently to his home (along with her children) and advised her that she could reside on the land?” For life. She averred that on that promise (presumably the promise implied in his advising her that she could reside on the land for life) she gave up her house in Potters and her job and relocated (with her three children) to Bendals to live with the Deceased. The Defendant averred that thereafter (presumably after she had relocated to Bendals to live with the Deceased) she became acontractual licensee of the Deceased.

[16]Having thus built a defence based on her being a contractual licensee of the Deceased, the Defendant then set up a promissory estoppel based on her moving (presumably from her home in Potters to the Deceased’s home in Bendals) to Her detriment, in reliance on the Deceased’s promise that she could reside on the land for life; then came an overriding interest subsisting (under section 28 (g) of the Registered Land Act1) by virtue of her actual occupation of the land. by her counterclaim, however, the contractual licence had re-emerged as the foundation of the Defendant’s case. ·..

[17]The first authority cited by the Defendant in her list of authorities is a statutory one – section 28 (g) of the Registered Land Act1 . Section 28 of the Act provides that “all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same” – “(g) the rights of a person in actual occupation of land”.

[18]The second authority cited by the Defendant is a textbook authority – Kevin Gray’s Elements of Land Law. At page 541 of the text, the author states the following – “A contractual licence comprises a permission to be present on land which derives its force from some contract express or implied. It differs from The bare licence in that it is not granted gratuitously but is founded upon valuable consideration moving from the licensee.”

[19]The third authority cited by the Defendant is Volume 27 (1) of Halsbury’s Laws of England 4th Edition. It is stated at paragraph 10 of Volume 27 (1) that – “A gratuitous licence is revocable by notice at any time, and is revoked by the death of either party”. Paragraph 10 also provides That “Where a licence is granted by contract, the resulting right to occupy land is usually described as a ‘contractual licence’, but it is not an entity distinct from the contract which brings it into being, but merely one of the provisions of that contract.” Paragraph 10 provides also that – “In order to establish a contractual licence there must be a promise which is intending to be binding and is either supported by consideration, or is intended to be acted upon and is in fact acted upon.” It is also provided in paragraph 10 That “Since a licence does not create an interest in land, it is not binding upon a successor in title of the original grantor unless the circumstances are such as to give rise to aconstructive trust.” ..

[20]The final authority cited by the Defendant is the English Court of Appeal case of Tanner v Tanner2. The facts of that case were that the defendant (a woman) had been induced by the claimant (a man with whom she had an intimate relationship) to give up her rented accommodation and to move in (along with their two children) to a house purchased by him; that some time after she had done so, the claimant formed a liason with another woman whom he subsequently married; and that afterwards he gave notice to the defendant to vacate the house so that he could move into it with his new wife.

[21]in a judgment delivered by Lord Denning, with which the other two judges agreed, the Court of Appeal decided that although there was no, express contract to that effect, the circumstances of the case were such that the court should imply a contract by virtue of which the defendant had a contractual licence to have accommodation in the house for herself and the two children so long as the children were of school age and the accommodation was reasonably required for her and the children.

[22]the only authority cited and provided by the Claimant, is the case of Winter v Richardson3 , decided by the Court of Appeal of the Eastern Caribbean Supreme Court on appeal from the High Court in Antigua and Barbuda.

[23]in that case, the Court of Appeal held that the rights of a person in actual occupation under section 28 (g) of the Registered Land Act1 are not protected as an overriding interest where that person is a bare or gratuitous licensee and that abare or gratuitous licence is revoked by the death of either the licensee or the licensor. 2[1975]3 ALL ER 776 3 High Court Civil Appeal NO.2006/025

[24]The thrust of the submission of Learned Counsel for the Claimant is that there is no evidence to support the averment in the Defence that the Defendant was a contractual licensee of the Deceased. In particular, she submitted, there is no evidence of acontract between the Defendant and the Deceased in the form of an agreement intended to be binding and for which there was consideration. It is apparent from the pleadings, the submissions and the authorities cited, however, that this case cannot be concluded at this juncture. If on the evidence (at trial) the Defendant establishes (on a balance of probability) that the circumstances of the case are such as to enable the Court either to piece together a binding agreement between the Defendant, and the Deceased or that the circumstances are such as to incline the Court to infer the existence of an implied contract between them (as was done by the English Court of Appeal in Tanner v Tanner2 ) then the Defendant’s Defence would at least have a reasonable prospect of success. It would also appear that if the Defendant, succeeds in establishing that she does have a contractual licence to occupy the property, her rights as a person in actual occupation of the land would be protected as an overriding interest under section 28 (g) of the Registered Land Act1.

[25]If the submission of Learned Counsel for the Claimant was made at the conclusion of the trial of the case:- and there was then no evidence or no credible evidence to support the averment in the Defence That the Defendant was a contractual licensee of the Deceased and in particular, that there. was then no or no credible evidence of a contract – express or implied – by virtue of which the Defendant acquired a contractual licence, then there would be no difficulty in upholding the submission and in giving judgment in favour of, the Claimant based on the absence of any or any credible evidence to support an averment of the Defendant having a contractual licence to occupy the property for the remainder of her life. But Learned Counsel’s submission has been made in support of an application filed even before the close of the pleadings – the Claimant, not having replied as yet to the Defence or defended the Counterclaim – so the Court cannot know at this juncture what if any evidence the Defendant has to support her averment that she is a contractual licensee.

[26]In these circumstances, the Claimant’s application to strike out the Defendant’s Defence (and the Counterclaim which stands or falls with the Defence) is hereby dismissed.

[27]The Court will decline to make an award of costs on the application and will treat the hearing of [the application as the case management conference and make the following case management orders:

1.The Claimant shall file and serve a Reply to the Defendant’s Defence and a Defence to the Defendant’s Counterclaim on or before 18th April 2012.

2.Standard disclosure by the parties on or before 2nd May 2012.

3.Leave is given to the Claimant and the Defendant to call 3 witnesses each.

4.Witness statements to be filed and served by the parties on or before 16th May 2012.

5.Witness statements shall stand as the evidence in chief of the makers of the witness statements.

6.Witnesses to attend court to be cross examined unless specifically exempted in writing from so doing by the adverse party.

7.Listing questionnaires to be filed by the parties on or before 30th May 2012.

8.Pre-Trial Memoranda to be filed by the parties on or before 13th June 2012.

9.Pre-Trial Review is set for 2200 June 2012.

10.Trial date to be fixed by the Court office for the month of July 2012.