Rebecca Rachel Atkinson also called Rebecca Rachael Atkinson (nee Fatal) acting herein and represented by her Attorney Noelita Grant Claimants v 1. Gertrude Mathurin Qua Administratrix of the Estate of the late Vitalienne Wilson also called Vitalienne Mathurin 2. Nathaniel Thomas Attorney by Power of Attorney for Gertrude Mathurin Defendants [ECSC]
| Jurisdiction | St Lucia |
| Judgment Date | 13 October 2006 |
| Judgment citation (vLex) | [2006] ECSC J1013-2 |
| Docket Number | Claim No. SLUHCV 1002/2004 0041/2005 |
| Court | High Court (Saint Lucia) |
| Date | 13 October 2006 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Claim No. SLUHCV 1002/2004 0041/2005
Mr. Andie George for Claimant
Mrs. Lydia Faisal for Defendants
[1] By Deed of Donation dated 1st April 1981 and registered at the office of Deeds and Mortgages as Instrument No. 132073 in volume 121, Vitalienne Wilson also called Vitalienne Mathurin (hereafter referred to as the Deceased) donated to Rebecca Rachel Atkinson also called Rebecca Rachael Atkinson (hereinafter referred to as the Claimant) a one half share in her property which consisted of three (3) contiguous portions of land at Bois d' Orange in the quarter of Gros Islet and measuring respectively 6000 square feet, 3500 square feet and 2208.6 square feet together with the dwelling house then under construction.
[2] By Hypothecary Obligation dated 11th April 1983 and recorded on 12 April 1983 at Volume 136a and numbered 139585, the Deceased and the Claimant secured a loan with Barclays Finance Corporation of the Leeward and Windward Islands Ltd (Barfincor) for the sum of $40,000.00.
[3] During the Land Registration and Titling Project pursuant to section 6(1) of the Land Adjudication Act, 1984, all persons with interest in land were required to submit their claims.
[4] At the time both the Deceased and the Claimant were resident in the United States of America and neither filed a claim.
[5] However, on 5th November 1984, Barfincor on the basis of its registered Hypothecary Obligation, submitted a claim numbered 1A 001 in respect of the property. This claim listed the Deceased and the Claimant as owners of the property and the name of Lorenzo Williams was entered as the person representing the owners.
[6] On 14th January 1985, a second claim form numbered 1A950 was completed giving Mrs. Carmen Grant as the person representing the owner who in this instance was entered as the Deceased. It was apparent that another name had been written in the Claim Form but that name had been erased. The Court was not able to decipher whose name had been entered nor to conclude that it had been the Claimant's name which had been erased.
[7] The Adjudication Record for the property was completed on 7th May, 1985 in the sole name of the Deceased. While the Adjudication Record indicates that no documents had been produced to the Recording Officer, there was however reference to the abovementioned Hypothecary Obligation which had been executed in favour of Barfincor.
[8] The land was subsequently registered on 28th October 1986 in the Land Register as Parcel 1054 B 144 and listed the Deceased as the Proprietor. That title remained unchallenged until November 2003 when it was re-registered in the name of the first Defendant as administratrix of the estate of the Deceased who had died on 1st June, 1997.
[9] The Land Register was again changed on 15th December 2003 in respect of this property when the first Defendant sold it to the second Defendant whose name was then entered as the proprietor.
[10] On 27th December 2003, the second Defendant through his Attorney at Law gave notice to quit to the niece of the Claimant who had been residing at the property. On receipt of this notice, the niece contacted the Claimant who immediately placed a caution on the property. The niece continued to live in the premises.
[11] On 7th December the second Defendant had the water supply to the premises disconnected as a result of which, a Petition numbered SLUHCV 2004/1002 was filed on 23rd December 2004 on behalf of the Claimant by her said niece to whom the Claimant had given a power of attorney.
[12] An interim injunction was granted by the Court on 24th December 2004 in which an order was made for, among other things, the immediate reconnection of the water supply to the premises and for the status quo in relation to the occupation and use of the premises to be maintained. The injunction was to continue until 19th January 2005 at which time there would be further consideration of the matter.
[13] A subsequent claim SLUHCV 2005/0041 was filed on 18th January 2005 against the two (2) Defendants in which the Claimant claimed inter alia:
-
1. Burial expenses in the sum of $17,683.08
-
2. A Declaration that the Claimant is entitled to a half share in and to the said parcel of land known as Block 1054 B Parcel 144 and the dwelling house erected thereon or the value of the half share.
-
3. An order that the Letters of Administration be improbated and the Claimant Rebecca Rachel Atkinson also called Rebecca Rachael Atkinson (nee Fatal) be appointed as Administratrix of the estate of Vitalienne Wilson also called Vitalienne Mathurin, deceased.
-
4. An order mandating the Defendants to cancel without delay Deed of Sale dated 14th November 2003 and registered at the Land Registry on 21st November 2003 as Instrument No. 3574/2003.
-
5. An Order directing the Registrar of Lands to rectify the register to reflect the Claimant's interests or an Order that the Defendants pay to the Claimant the value of her interest in and to the parcel of land registered in the Land Registry as Block 1054 B parcel 144 and the house erected thereon.
[14] On the returnable date of the interim injunction, 19th January 2005, the Court ordered a continuation of the injunction and that the other claim which involved the same parties be set for 9th February 2005 and for the first Defendant to be served personally with notice of hearing for said 9th February, 2005.
[15] When the two matters came on for hearing on 9th February 2005, the court ordered a consolidation of the matters and the Defendants to file their defence.
[16] On 10th October 2005, before the start of the trial, an application was made by the Claimant for the amendment of the Claimant's Statement of Claim to allow the Claimant to include the particularized issues of mistake and/or fraud and of overriding interest and to plead the existence of a trust.
[17} The evidence led was by witness statements on which the witnesses were cross examined: the Claimant and her niece for the Claimant and a Mr. Haynes and the second Defendant on behalf of both Defendants, the second Defendant acting through a Power of Attorney for first Defendant.
[18] The Claimant gave evidence that though she never actually lived in the house, her grand niece occupied the top floor rent free for approximately eight (8) years.
[19] According to her it was her aunt who "brought her up", that the Deceased was "like her mother". She lived with the Deceased from the age of three (3) and at the age of 20, the Deceased took her to live with her in London, England. They lived there for a number of years before the Claimant moved to the United States of America in 1960, and she later sent for the Deceased to live with her. This was late 1970's/early 1980's. They lived together in the United States and the Claimant got the Deceased a job.
[20] It was during her stay in the United States that the Deceased decided to purchase the land in question and to build the house. The Deceased made the purchase of land from her earnings and took out a loan to build the house. This loan was paid entirely by the Deceased but it was not enough to complete the house.
[21] The Claimant and the Deceased then secured a loan from Barfincor which the Claimant agreed to pay because according to her, the Deceased had agreed to give her a half share in the property. This the Claimant states the Deceased did in 1981.
[22] She was unaware that she had to make a claim for ownership of the property but she never gave up her interest nor agreed to sell that interest.
[23] Under cross examination, the Claimant admitted receiving money from the Deceased. This she said was to pay the Deceased's bills.
[24] She admitted applying for Letters of Administration to the estate of the Deceased but never got them. She denied that the lawyer had told her that she could not get the Letters because she was not a close enough relative. She stated that she never tried any further to get the Letters because she was in London.
[25] The Claimant stated that she was not present when the Deed of Donation was executed. She did not know if the Deceased was present. She stated that she did not know anything about the Deed of Donation until after her aunt's death. It was only after her death that it came to her attention. She stated that it was because she was not aware of the Deed of Donation that she did not know that she had to make a claim of ownership.
[26] She became aware of the Deed after her aunt was buried. She had no idea why the Deceased did not tell her about the Deed. If she had known about the Deed she could have done what she had to do to put the title right.
[27] The Claimant reiterated that she was unaware that she had to make a claim and that failure to do so would cause her to lose the property.
[28] She became aware of all the documents relating to the property after the death of the Deceased. She stated that she didn't think the Deceased did anything to prevent her from getting the land, that she didn't think that the Deceased would cause anybody to do anything to prevent her from getting the land. She could give no reason why her name was not on the "land paper".
[29] She admitted to only becoming involved in the "land issue" after the death of the Deceased because when the Deceased was alive, she had no reason to. She trusted the Deceased — she was "like my mother'.
[30] Her witness statement disclosed that she had...
To continue reading
Request your trial