Beckles v Bowen et Al

• Jurisdiction: Barbados
• Judge: Chandler, J.
• Judgment Date: 13 July 2016
• Neutral Citation: BB 2016 HC 21
• Docket Number: No. 1850 of 2012
• Court: High Court (Barbados)
• Date: 13 July 2016

High Court

Chandler, J.

No. 1850 of 2012

Beckles

and

Bowen et al

Appearances:

Ms. Alicia A. Archer, Attorney-at-Law for the claimant

Mr. Errol E. Niles, Attorney-at-Law for the second defendant

Mr. Arthur Holder, Attorney-at-Law for the third and fourth defendants

Civil practice and procedure - Pleadings — Whether the claimant's application should have been dismissed for failure to set out grounds for bringing the application under Part 11.6 (1) (b) of the Civil Procedure Rules — Whether the claimant was entitled to the substantive relief sought under the CPR or under the inherent jurisdiction of the court — Whether the claimant had locus standi to bring the proceedings.

Property Law - Whether the first defendant had acquired any rights over the property — Whether the third and fourth defendants were trespassers.

Probate Law - Whether the first and second defendants intermeddled in the estate and became executors de son tort.

Chandler, J.

1 The claimant is the sole Administrator and as such the personal representative of the Estate of Cecil Eugene Lucas (the deceased). Letters testamentary dated 2 May 2012 were issued to him on 7 May 2012.

2 The first defendant is the sister of the deceased, and the aunt of the claimant. She occupied a house located at Parish Land in the parish of St. Philip, which was owned by the deceased. The first defendant died on 23 May 2014 leaving her last will and testament dated 17 October 2013 in which she appointed the fourth defendant the sole executor and beneficiary thereof. On 13 November 2014, the Court appointed the fourth defendant, as such executor, to represent the estate of the first defendant solely for the purposes of these proceedings exercising the power conferred on the Court under The Supreme Court Civil Procedure Rules 2008 (CPR) Part 21.7 and pursuant to the Succession Act Chapter 249 of the Laws of Barbados. Notwithstanding that appointment, Ms. James continued to hold a watching brief.

3 The second defendant is a pharmacist by profession and was the duly appointed attorney on record of the first defendant by virtue of a Power of Attorney dated 17 February 2008 and recorded on 20 October 2008. His appointment was revoked by Deed dated 19 April 2012 and recorded on 7 December 2012. A new power of attorney dated the 19 April 2012 and recorded 10 December 2012 appointed the fourth defendant the attorney on record of the first defendant.

4 The second defendant deposed that he is the son of Isalene Brathwaite, now deceased, a childhood friend of the first defendant. He looked after the first defendant and did chores for her for about 15 years. He also procured her medication for her medical problems, paid her household bills and took care of other ancillary matters for around 20 years. His affidavit evidence was not challenged on these points.

5 The third defendant is in occupation of a house located at Parish Land in the parish of St. Philip in which the first defendant lived. She also occupies and operates a shop formerly operated by the first defendant.

6 The fourth defendant is the duly appointed attorney on record of the first defendant as previously outlined in this decision. The fourth defendant also occupies the house at Parish Land in the parish of St. Philip with the third defendant.

THE APPLICATIONS

7 On 31 October 2012 the claimant filed a Fixed Date Claim Form and Statement of Claim against the defendants. By Notice of Application dated 31 October 2012 the claimant sought the following relief:

1

) That the defendants their servants and/or agents be restrained from entering upon any of the properties listed in the Schedule at (1), (2) and (3). 2) That the first and third defendant and/or their servants or agents do vacate and deliver up possession of the property situate at Parish Land in the parish of Saint Philip forthwith to the claimant. Further that the first and third defendants be restrained from removing any items, documents and property except her [sic] personal effects from said property. 3) That the second defendant and/or his servants or agents be restrained from exercising any power under the Power of Attorney granted to him on the 17th day of February 2008 and recorded on the 20th day of October 2008 (hereinafter called “the said Power of Attorney”). Further, that the second and fourth defendants be restrained from exercising any powers granted by the first defendant to them by virtue of the said Power of Attorney. 4) That the first and second defendants and/or their servants or agents do provide a Statement of Account to the Court within seven days of this order for any monies, items or properties held on behalf of the estate of Cecil Eugene Lucas, deceased. 5) That the defendants their servants and/or agents be restrained from entering upon; occupying advertising for sale; attempting to sell; altering the registration in the Land Tax Department; applying to the Land Tax Department and/or the Land Registry to alter the names of the person to whom the land and property taxes or any other impositions that should be delivered; or from doing any other matter or thing with respect to the properties described in the Schedule hereto. 6) That the defendants, their servants and/or agents be restrained from removing any items, except for personal effects only, from the property listed in the Schedule at iii. 7) That the third defendant, a trespasser, do vacate the property located at Parish Land in the parish of Saint Philip forthwith or at such other time as the Court determines. 8) That the second defendant be restrained from exercising any powers given to him by Dorothy Eugene Bowen concerning the estates of Cecil Eugene Lucas, deceased; Eugene Lucas, deceased and Theresa Lucas, deceased and more specifically as spelt out in paragraphs 1–3 of the Power of Attorney dated the 17th day of February 2008. 9) A Declaration that the general Power of Attorney dated the 17th day of February 2008 and recorded on the 20th day of October 2008 is null and void. 10) Such further or other order as the Court may deem just. 11) That the defendants do jointly and/or severally pay the claimant's costs of this application.

8 The Notice of Application filed by the claimant contained the following Schedule of properties:

• i. ALL THAT certain piece of land situate in the parish of Saint Michael and Island containing by admeasurement one (1) acre, two roods and twenty perches or thereabouts but by a recent survey 1.37 acres or thereabouts abutting and bounding on the South of Highway 4 on the West and North on the public road and on the East on lands now or late of Myra Fletcher deceased of however else the same may abut and bound.

• ii. ALL THAT land part of Salter's Plantation situate in the parish of Saint Michael and Island containing by admeasurement three acres two roods and thirteen perches or thereabouts but by survey found to contain 3.47 acres or thereabouts inclusive of one half portion of the private roadway fourteen feet wide hereinafter mentioned which forms one of the boundaries of the said parcel of land bounding on lands of one Ms. Gill on the Belle Plantation and on the private roadway 14 feet wide or however else the same may abut and bound.

• iii. ALL THAT property containing a house dwelling and shop situate at Parish Land in the parish of Saint Philip being part of the lands of Oughterson Plantation and containing approximately 30,000 square feet.

BACKGROUND

9 On 15 September 1998 Cecil Lucas, died intestate. The claimant applied for Letters of Administration to his estate, which were granted on 2 May 2012 and issued on 7 May 2012.

10 The claimant, in his capacity as Administrator and Personal Representative of the deceased's estate sent letters dated 16 May 2012 to the first and second defendants and requested that they, within 8 days, account for all property which they held that constituted part of the deceased's estate. The letter to the first defendant was returned to the claimant unopened. There was no response from the second defendant.

11 The claimant made a second request to the first and second defendants by letters, which were served on them personally. The first and second defendants failed to reply.

12 On 29 May 2012 the claimant served ‘Notices to Quit’ on the first, third and fourth defendants to vacate the premises located at Parish Land in the parish of St. Philip on or before 30th June 2012 but they remained in possession after that date.

13 The claimant then commenced proceedings against the defendants by the Fixed Date Claim Form previously mentioned.

PRELIMINARY POINT

14 The first defendant submitted that the application failed to provide the necessary and/or any information as to the grounds upon which the applicant was relying. The claimant's failure to set out the grounds raised the suspicion that the application was completely groundless in substance rendering the application critically defective. In consequence, the application ought to be dismissed with costs. She relied upon Otho Blackett et al v. Curtis Alexander at al [unreported] High Court suit No 578 of 2008 and Beach Properties Barbuda Ltd et al v. Laurus Master Fund Ltd et al Civil Appeal No. 2 of 2007 Eastern Caribbean Court of appeal.

15 No similar submission was made by the other defendants. The claimant did not deal with this issue in his written submissions.

16 No formal application to strike out the application was made by the first defendant under the Supreme Court ( Civil Procedure Rules) 2008 (the CPR).

ISSUES:

17 The issues that arise for determination are:

• a) Whether the claimant's application should be dismissed for failure to set out grounds for bringing the Application under Part 11.6 (1) (b) of the Civil Procedure Rules (CPR);

• b) If the first issue is answered in the negative then whether the claimant is entitled to the relief sought,...