Beulah Adeogun v Beulah Adeogun (Personal Representative of the Estate of Emily Pilgrim)
| Jurisdiction | Barbados |
| Judge | Mr. Justice Barry L. Carrington |
| Judgment Date | 08 April 2021 |
| Neutral Citation | BB 2021 HC 10 |
| Docket Number | NO. CV 1413 of 2017 |
| Court | High Court (Barbados) |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Before: The Honourable Mr. Justice Barry L. Carrington, Judge of the High Court
NO. CV 1413 of 2017
Cv 1778 Of 2017
Mrs. Kristin C. A. Turton in association with Ms. Rashida R. Edwards for the First and Second Claimants
Ms. Ann-Marie A. Coombs and Mrs. Roslyn Marshall-Mapp for the First and Second Defendants
Prior to the probate of a will under which a beneficiary would have been entitled, he leased several parcels of land that were vested in the deceased testatrix's estate. The tenants applied for ownership of the land as qualified tenants under the Tenantries Freehold Purchase Act Cap. 239B (“the Act”) but the application was resisted on the grounds that the landlord had no legal or equitable interest in the land and also did not have the authority to lease it.
The Registrar sought to convey the land to the tenants pursuant to his power of sale under the Act and the court made an order restraining him from exercising the power until there was judicial review of the matter. The parties have agreed that the issue to be determined is whether a valid tenancy was created under the Act.
Emily Cantiloo Pilgrim also known as Emily Pilgrim (“the Deceased Testatrix”), was the original owner of the property situate at Duncan's in the parish of St. Philip which forms the subject matter of this claim (“the Property”). She is the grandmother of Beulah Adeogun.
Beulah Adeogun in her personal capacity is the granddaughter of the Deceased Testatrix and the First Claimant in this matter.
Beulah Adeogun, in her capacity as the Personal Representative of the Estate of Emily Pilgrim, the Deceased Testatrix, is also the Second Claimant in this matter.
The Registrar of Titles is the First Defendant in this matter.
The Attorney General has been joined to the proceedings as the Second Defendant in this matter.
The Deceased Testatrix by her Will devised three (3) parcels of land to her respective beneficiaries. Lot 1 which formed part of the three (3) parcels was devised to her eldest granddaughter, Norma Pilgrim, to be disposed of “at her discretion”.
In addition, Lots 2 and 3 were devised to the Deceased Testatrix's husband, Frederick Pilgrim, for life. Further, upon his death, Lots 2 and 3 were to be divided among the Deceased Testatrix's four children.
It was further stipulated in the Deceased Testatrix's Will that Lots 2 and 3 were “not to be sold to any stranger”. However, the Deceased Testatrix's Will was never probated and the intended beneficiaries never received their share in the property.
Moreover, the beneficiaries and descendants of the Deceased Testatrix have continued to reside on the said parcels of land in compliance with the Testator's wishes as outlined in the Will.
Norma Pilgrim, who died testate on the 30 th day of June 1999, by her Will dated the 8 th day of April 1991, bequeathed her interest in Lot 1 to her two children: Marlyne Pilgrim and Vincent Pilgrim.
Subsequently, sometime in 2004, Vincent Pilgrim entered “lease agreements” authorizing six (6) persons to erect chattel houses on Lot 3 for a period of ten (10) years at an annual rent of $400.00.
Vincent Pilgrim died on the 9 th day of August 2008. His cousin David Pilgrim applied for and received Letters of Administration to the Estate of Vincent Pilgrim. David Pilgrim later applied to the Magistrate's Court to remove the persons occupying the said property, but the application was dismissed.
However, on or about October 2016, the Claimants discovered that an Application had been made by the persons occupying the said property (“the applicants”), to purchase the land by virtue of the Act, and that these Applicants were deemed “qualified tenants” under the Act by the Ministry of Housing.
An Application was filed on the 21 st day of November 2017 by the First and Second Claimants for the Judicial Review of the First Defendant's decision to exercise his Power of Sale pursuant to section 13 of the Act, and sought the following Orders:
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1. A Declaration that the First Defendant is not empowered to exercise a Power of Sale pursuant to the Tenantries Freehold Purchase Act in favour of the Applicants in respect of property situate at Duncan's in the parish of St. Philip in this island;
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2. An Order of Prohibition prohibiting the First Defendant, his servants or agents from exercising the Power of Sale pursuant to the Tenantries Freehold Purchase Act in favour of the Applicants in respect of property situate at Duncan's in the parish of St. Philip in this island;
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3. Costs;
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4. Further or other relief as this Honourable Court deems fit.
It is contended that the Claimants have failed to identify the size of the parceldevised to Emily Pilgrim by her father which they refer to as Lot 3.
Further, it is surmised that two parcels of land were devised to Emily Pilgrim in her father's Will which consisted of: two (2) Roods of land at Pilgrim's Lodge and one (1) Rood, thirty-five (35) perches of land at Gooding's or Merrick's.
The Defendants assert that notwithstanding the similarity in the size of the two parcels, it is difficult to say with certainty that the said devise from Emily Pilgrim to Norma Pilgrim and Lot 1 are the same parcel.
It is further averred that considering the disparity between the size of the devises in Emily Pilgrim's Will and the sizes of Lots 2 and 3 in addition to the failure of the Wills to properly identify the property being devised, it is difficult to conclude with any degree of certainty that the devises highlighted at paragraph 26 hereof and Lots 2 and 3 are the same parcels of land.
It is highlighted that Norma Pilgrim not only devised all her real and personal property including her one half (1/2) Rood of land at Duncan's St. Philip to her two children: Marlyne Pilgrim and Vincent Pilgrim; but she also devised to them all her share and interest in her deceased parents' estate in Duncan's and Diamond Valley or wherever else in equal shares and appointed Vincent Pilgrim to be sole Executor of the said Will.
Norma Pilgrim's mother was Irene Rosamond Pilgrim, who died intestate and was a beneficiary of a dwelling house and two (2) Roods of land in the Will of Emily Pilgrim.
The Defendants contend that the interest of Vincent Pilgrim in the Estate of Emily Pilgrim extended beyond the 20 perches of land at Duncan's St. Philip (purportedly Lot 1) and entailed all land/property devised to his mother Norma Pilgrim including the additional two (2) Roods (purportedly Lot 2).
It is finally intimated that David Pilgrim, on behalf of Vincent Pilgrim, accepted rent from one of the Applicants in 2009 and attempted to refund it in 2013 and 2016, respectively.
The at the crux of this matter is whether a valid tenancy was created between Vincent Pilgrim and the Applicants and whether the Registrar has the authority to convey the property to the applicants.
The Claimants provided written submissions which were later supplemented by oral submissions. Counsel examined the Act and asserted that it allows for the freehold of the lots to be purchased by ‘qualified tenants’.
They contend that under section 4(2), a tenant becomes ‘qualified’ by residing on the lot for a period of five (5) consecutive years or for a period of five (5) years out of the seven (7) years.
Moreover, by virtue of section 13(2), the Registrar of Titles has the power to convey property to a ‘qualified tenant’ without the concurrence of the landlord and can compel any person to produce title deeds, plots and plans of a tenantry or of a lot.
The Claimants submit that section 3(2) does not render the construction and interpretation of the Act at large. There must be a degree of strictness in interpreting an Act which deprives landlords of their property rights: Herman Ramdass v Marilyn Bahaw-Nanan [2009] UKPC 51 & Methuen-Campbell v Walters [1979] QB 525.
Counsel contend that the Act is expropriatory in nature and the interpretation should only be as liberal as is needed to give effect to the purpose of the Act. Further, any interpretation of the Act must ensure that only tenants benefit and only landlords are deprived of their property. The Claimants add that the meaning of the terms: ‘tenant’, ‘landlord’, and ‘tenancy’ are critical.
Counsel argued that a landlord or lessor must be possessed of an interest in property which he confers on the tenant or lessee, for the landlord-tenant relationship to exist, and referred to V Hazelton Limited v Perfect Smile Dental Inc. [2019] ONCA 423. They argue that any tenancy agreement purportedly entered by a person without such an interest would be void ab initio and would not fall to be considered under the Act.
Counsel further expressed concern about the implications of finding the relationship of landlord and tenant to be created under the Act, even if the landlord does not have a legal or equitable interest in the property.
The implications stem from the fact that a person with a legal/equitable interest in a property can be deprived of that interest in circumstances where they have not put tenants into possession of their property or authorized an agent to put tenants into possession of their property. Further, this could not have been the intention of the legislature when creating the Act as legal owners would be deprived of their property rights without adequate compensation.
Counsel further relied on the...
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...41 In the Barbadian High Court decision of Beulah Adeogun v Beulah Adeogun (Personal Representative of the Estate of Emily Pilgrim) BB 2021 HC 10, prior to the probate of a Will under which a beneficiary would have been entitled, he leased several parcels of land that were vested in the dec......