Marva Lindawese Best v Ercille Pauline Kinch
| Jurisdiction | Barbados |
| Judge | Burgess JA |
| Judgment Date | 11 December 2018 |
| Neutral Citation | BB 2018 CA 10 |
| Court | Court of Appeal (Barbados) |
| Docket Number | Civil Appeal No. 37 of 2012 |
| Date | 11 December 2018 |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
The Hon. Sandra P. Mason, The Hon. Andrew D. Burgess, The Hon. Kaye C. Goodridge, Justices of Appeal
Civil Appeal No. 37 of 2012
Mr. Norman Thomas QC for the Appellant
Mr. Edmund R. Hinkson for the Respondent
Property Law Land dispute — Conveyance obtained through fictional foreclosure suit — Declaration seeking cancellation of conveyance — Whether fictional foreclosure was obtained by fraud — Title by curtesy — Statutory interpretation — No statute had retrospective operation — Adverse possession — Whether title could be obtained through proprietary estoppel — Legitimate expectation.
This appeal is a mesmerizing montage of ancestral Bajan socio economic, legal, historical and cultural memes.
It concerns land purchased with money earned by a Barbadian in the construction of the Panama Canal, a Barbadian Silver Man, for which no grant of representation had been obtained to the land for two generations. In those circumstances, the respondent, a granddaughter of the Silver Man, by a Barbadian foreclosure suit, a home grown legal fiction, obtained title to the land by a conveyance dated 15 November 1999 from the Registrar of the Supreme Court. The appellant instituted an action in the High Court against the respondent, her half-sister, for a declaration that that conveyance was fraudulently obtained and therefore void and, in consequence, for an order for the cancellation of the conveyance.
The case was heard in the High Court before Cornelius J who, on 27 November 2012, delivered judgment in which she dismissed the claim of the appellant. This appeal before us is against that decision of Cornelius J.
The appellant/plaintiff, Marva Lindawese Best, resides at Briar Hall Road, Kendall Hill, Christ Church. She traces her paternal roots back to Livingstone Ethelbert Daniel (Livingstone). The respondent/defendant, Ercille Pauline Kinch, who resides in St Christopher, Christ Church is the half-sister of the appellant and also traces her paternal roots back to Livingstone.
On 10 December 1927, Livingstone married Lamont Octavia Layne (Lamont). That marriage produced three children, namely, Hadley, Husford and the respondent. Lamont died on 28 October 1932. Hadley died in the United States sometime in 1994 and Husford died on 30 May 1995. So that, the respondent is the only survivor of the marriage between Livingstone and Lamont.
Meanwhile, two years after Lamont's death, on 11 October 1934, Livingstone remarried to Rose Deline Reid (Rose). That marriage produced three children, namely, Arlene Daphne Daniel-Brathwaite (Arlene), Warrington DeCourcey Daniel (Warrington) and the appellant.
Livingstone died on 4 December 1982 and Rose on 24 March 1998, at the age of 89 years.
The evidence is that Lamont's maternal grandfather, William Layne, was one of many Barbadians who had immigrated to work on the construction of the Panama Canal, the so-called “Silver Men.” William Layne had used his earnings from Panama to purchase a plot of land situate at Briar Hall, Christ Church containing by admeasurement 1,762.7 square metres or thereabouts (“the land”). The dispute which has arisen before us is in respect of that land.
William Layne married Constance Pinder Layne and had one child only, namely, Lamont, as we have already noted, the respondent's mother.
William Layne died intestate and no one ever took out letters of administration on behalf of his estate.
After her marriage to Livingstone, Lamont and Livingstone lived in a single roof chattel house with a detached kitchen and a pit toilet on the land with the three children of their marriage until Lamont's death.
After Lamont's death, Livingstone remained in occupation of the dwelling house on the land. Livingstone thereafter married Rose. Upon his marriage to Rose, Livingstone brought her to reside on the land with him and the three children of his union with Lamont.
As already recited, the union between Livingstone and Rose produced three children. Of these, Arlene was born in Westmoreland, St. James and was raised by her maternal aunt in Upper Carlton, St. James. She never resided on the land. However, Warrington and the appellant were born and raised in the dwelling house on the land where Livingstone and Rose continued to live until Livingstone died in 1982. Rose continued to live there until her own passing in 1998.
In the meantime, sometime in 1952, Livingstone requested the respondent to leave the dwelling house after she became pregnant. She moved to Scarborough, Christ Church where she lived thereafter with her child's father and eventual husband. In 1968, Warrington left the dwelling house when he immigrated to New York in the United States of America and, upon her marriage to Lionel Best in 1974, the appellant also moved out of the dwelling house and went to live with her husband in Lodge Road, Christ Church.
It is important to flag here that, even after Warrington's immigration to the United States, he maintained ties to the land in that he left his daughter, Wilma Daniel, residing in the dwelling house until she was served with a notice to quit by the respondent in April, 2008. Sometime in 1972, Warrington had had the dwelling house renovated into a three bedroom chattel house with a wall bathroom. Before his mother's death, sometime in 1994, Warrington had commenced paying an annual rent of $160.00 in respect of the land to the respondent.
It is also important to flag here that, the appellant, in or about 2002 requested of the respondent to rent her, the appellant, lot 3 of the larger area of the land on which the appellant and her husband could move a chattel house which was given to the appellant's husband by his father. The respondent agreed to rent the lot to the appellant at an annual rent of $160.00. The appellant paid that sum until she was served a notice to quit by the respondent on 26 April 2008.
Sometime in 1984, after the death of her father but before the death of her stepmother, the respondent caused a plan of the land to be prepared by a land surveyor. That plan proposed the subdivision of the land into four lots, namely, Lots 1, 2, 3 and 4. Thereafter, on 9 October 1991, the respondent made an application to the Chief Town Planner for permission to effect the subdivision. Permission was granted on 15 April 1992.
On 19 February 1997, the respondent instituted foreclosure proceedings in the High Court under Order 31 of the Rules of the Supreme Court of Judicature, 1982 in fictional Suit No. 260 of 1997 entitled Roseanne Skeete v Ercille Pauline Kinch. According to the respondent, the object of that suit was for her to obtain title to the land.
In her supplementary affidavit dated 12 February 1999 and filed on 15 February 1999 in the foreclosure suit, the respondent averred that no one had “any prior or stronger right to ownership or occupation” of the land greater than hers. She deposed that her brother, Husford, who was residing in the dwelling house at the time of his death, “died intestate without ever having any children or any wife” and that she was “his sole surviving sibling”. It may be noted that she did not make any mention of Hadley who had died in the United States in 1994.
In her affidavit, the respondent deposed that her half-brother, Warrington, was occupying a portion of the land. She averred, however, he had been paying to her $40.00 “in land rent every three months in this regard since 1994.”
As part of the process of the application, a marshal attached to the Court Process Office in the Registration Department, on 19 December 1997, affixed a copy of the written notice on the land inviting persons having any claims, liens or charges against the land to file them in the Registration Office. Similar notices had appeared in the Official Gazette published on 22 May 1997 and in the Nation Newspaper published on 15 July 1997.
No adverse claims were filed in the Registration Department. Accordingly, on conclusion of the foreclosure proceedings, the Registrar of the Supreme Court conveyed the land to the respondent by way of a conveyance dated 15 November 1999. This conveyance was recorded in the Land Registry on 15 February 2001 as Deed No. 1085 of 2001. So that, by way of the foreclosure proceedings, the respondent became sole owner of the land.
It will be recalled that the respondent, on 26 April 2008, served a notice to quit Lot 3 on the appellant. The appellant refused to do so. Instead, by a writ of summons filed on 27 February 2009, the appellant instituted an action against the respondent. In it she sought to obtain, in particular, a declaration that the conveyance dated 15 November 1999 from the Registrar of the Supreme Court was void and an order that that conveyance be delivered up to the court for cancellation.
In her statement of claim filed along with her writ of summons, the appellant alleged that the respondent had wrongfully commenced the foreclosure proceedings as she, the respondent, “never had any exclusive claim right or title as against the [appellant] to the said land” and that the respondent “knew or ought to have known that the [appellant] was equally entitled to the said land as the [respondent]”. The appellant also alleged that the respondent had “knowingly and falsely misrepresented to the Registrar of the Supreme Court” that the respondent had inherited the land from the respondent's maternal grandmother.
The respondent further alleged that their father, Livingstone, had become entitled to the land by curtesy or that, in the alternative,...
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