Stephen St. Clair Pollard v Hrton McDonald Pollard

• Jurisdiction: Barbados
• Judge: Madam Justice Shona O. Griffith
• Judgment Date: 23 October 2020
• Neutral Citation: BB 2020 HC 55
• Court: High Court (Barbados)
• Docket Number: Civil Suit No: 1138 of 2018
• Date: 23 October 2020

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL DIVISION

Before:

The Hon. Madam Justice Shona O. Griffith, Judge of the High Court

Civil Suit No: 1138 of 2018

In the Matter of the Estate of Seymour Clairmonte Pollard (also known as Clairmonte Pollard)

And in the Matter of the Succession Act, Chapter 249 of the Laws of Barbados

Between

Stephen St. Clair Pollard

First Claimant

Marjorie Anita Chastenet

Second Claimant

Wilma Veronica Holloway

Third Claimant

and

Hrton McDonald Pollard

First Defendant

Sherrie Vanessa Griffith

Second Defendant

Appearances:

Ms. Grace McCaskie in association with Ms. Maria Knight for the 1 ^st and 3 ^rd Claimants; 1 ^st Claimant present.

Mr. Derek Daniel for the Second Claimant.

No appearance by Counsel for the 1 ^st Defendant; 1 ^st Defendant present.

Ms. Anne Reid for the 2 ^nd Defendant; 2 ^nd Defendant present.

Administration of Estates — Sale of property by Administrator — No consent by beneficiaries to sale by Administrator — Validity of sate — Remedies of beneficiaries to sale without consent — Section 32, Succession Act, Cap. 249.

RULING

INTRODUCTION

1 The three Claimants in this matter, Stephen Pollard, Marjorie Chastenet and Wilma Ilolloway, and the 1 ^st Defendant Kirton Pollard, are all siblings and beneficiaries of the Estate of their late father Seymour Pollard, deceased. The 1 ^st Defendant is the Administrator of the said Estate, of which property known as Lot 50 Apes Hill, Baywoods, St. James (‘the Apes Hill property’), had formed a part. The 2 ^nd Defendant is a former neighbour of the family and now owner of the Apes Hill property which was conveyed to her by the 1 ^st Defendant in February, 2018. In August, 2018 the Claimants filed their Fixed Date Claim against the two Defendants, seeking a number of declarations and orders.

2 The gravamen of the Claim as initially filed is that the 1 ^st Defendant, by misrepresenting that he was the sole, as opposed to only one, of the beneficiaries entitled under the Estate, obtained Letters of Administration to the Estate.

Thereafter, as Administrator falsely appointed, the 1 ^st Defendant by Deed of Assent, wrongfully vested title in the Apes Hill property in himself and thereafter conveyed that property to the 2 ^nd Defendant, without the required knowledge or consent of the beneficiaries. The Claimants also contend that the 1 ^st Defendant sold the property at an undervalue and has to date failed to account to them for other assets comprised in the Estate.

3 The Claimants have sought various forms of relief, including a revocation of the 1 ^st Defendant's Grant of Administration; a set aside of the conveyance of the Apes Hill property to the 2 ^nd Defendant; and an account to be rendered by the 1 ^st Defendant for his dealings with the Estate. The 2 ^nd Defendant's response to the claim is that she is a bona fide purchaser of the property, for valuable consideration. In February, 2019 the Claimants sought and obtained an injunction restraining the 2 ^nd Defendant from any further use, development or encumbrance against the property until further order. In June 2019, the 2 ^nd Defendant applied for the injunction granted against her in February, 2019 to be discharged. This Application also sought relief declaring the validity of the conveyance and damages. Directions were issued by the Court in February, 2020 for the hearing of the application to discharge the injunction, in addition to an issue raised of the Court's own motion, regarding the viability of the case against the 2 ^nd Defendant.

BACKGROUND

Procedural History

4 The Fixed Date Claim (FDC) was accompanied by a statement of claim (SOC). Additionally, two affidavits (one each by the 1 ^st and 3 ^rd Claimants) were shortly thereafter filed in further support of the (FDC). In April, 2019, the 1 ^st Defendant filed an affidavit in response to the Claim; whilst the 2 ^nd Defendant filed a defence in addition to affidavits in response. Also in April, 2019, the 2 ^nd Claimant filed an affidavit whereby she distanced herself from the claim, which she said had been filed without her knowledge or consent. Between June and August, 2019 the 2 ^nd Defendant filed responses to the affidavits of the 1 ^st and 3 ^rd Claimants, as well as an additional affidavit further to her defence to the claim. The 2 ^nd Claimant formalized her lack of support for the claim by procuring separate legal representation, thus references from hereon to ‘the Claimants’ will only be applicable to the 1 ^st and 3 ^rd Claimants.

5 In March, 2020 during the time awaited for hearing of the 2 ^nd Defendant's application to discharge the injunction and the issue directed by the Court, the 1 ^st and 3 ^rd Claimants filed an Application of their own (without notice to or permission sought from the Court), objecting to the discharge of the injunction against the 2 ^nd Defendant. This Application also restated the claims for relief as set out in the FDC.

This Application was supported by a further affidavit of the 1 ^st Claimant, as well as an affidavit from an attorney-at-law previously retained by the 1 ^st Claimant, shortly before the sale of the property took place in February, 2018.

Given all of the affidavit evidence placed before the Court and the extent of relief sought by both applications, the Court finds it necessary to set the parameters of what forms part of the Court's consideration on the hearing of the Applications, as well as the relevance (or not), of the evidence before the Court. In order to do so, it is useful to outline the general thrust of the respective cases of the parties.

Scope of the Court's Inquiry

6 The claim filed by the 1 ^st and 3 ^rd Claimants contended that the 1 ^st Defendant obtained Letters of Administration by misrepresenting himself to be the sole beneficiary of their deceased father's Estate. In their submissions on the Applications before the Court, the 1 ^st and 3 ^rd Claimants abandoned this position regarding misrepresentation in obtaining the Grant of Administration.

It is presumed that this position was abandoned, having regard to the affidavit filed by the 2 ^nd Defendant 1 which attached forms from the 1 ^st Defendant's application for Letters of Administration (No. 458/1997). These forms disclose the fact that the 1 ^st Defendant was one of four children of the deceased, thus the Claimants' concession on that point is in order.

7 The position in relation to the 1 ^st Defendant's bona fides in obtaining the Grant of Administration no longer being in contention, the claim advanced by the 1 ^st and 3 ^rd Claimants, is that the 1 ^st Defendant obtained sole legal title to the Apes Hill property by misrepresenting himself as the sole beneficiary thereof. As is material to the application before the Court, the FDC alleges:-

“The Claimants …claim against Kirton McDonald Pollard, the First Defendant and Administrator of the Estate herein… for

• …

• (ii) falsely claiming and knowingly making the misleading statement unknown to the Claimants that he is the sole beneficiary of the Estate herein in the Deed of Assent and vesting in which he vested in himself as the ‘Sole Beneficiary’ the Estate's property situate at Lot 50 Apes Hill Tenantry, Baywoods in parish of Saint James (Apes Hill Property’);

• (iii) conveying the said Apes Hill property…to the 2nd Defendant Sherrie Griffith…without the prior knowledge and/or consent of his said siblings and without giving effect to their express wishes which are in opposition to the said sale and conveyance;…”

8 The FDC then set out relief claimed, which include the following:-

• “1. A Declaration:

  That the conveyance of the land situate at Lot 50 Apes Hill Tenantry, Baywoods in the parish of Saint James to the Purchaser Sherrie Vanessa Griffith is null and void; and

• 2. In the alternative, the award of damages to the Claimants as compensation for their loss and damage;

• 3. An Order that

  • (i) An interim order restraining the 2 ^nd Defendant whether by herself her servants and/or agents from any further use or development of the said land situate at Lot 50 Apes Hill Tenantry in the parish of Saint James until further Order;

  • (ii) The Grant of Letters of Administration to the 1 ^st Defendant be revoked;

  • (Hi) The 1 ^st Defendant do lodge at the Registry of the Supreme Court the original Grant of Letters of Administration within 14 days after the service of the Fixed Date Claim Form herein;

  • (iv) Approval be granted to the 1 ^st Claimant, Stephen St. Clair Pollard, to apply for Letters of Administration to the Estate herein of Seymour Clairmonte Pollard also known as Clairmonte Pollard, Deceased;

  • (v) The 1 ^st Defendant do account for the payment by the Ministry of Housing, Lands and Rural Development of compensation for the acquisition of the said parcel of land at Orange Hill in the parish of Saint James and distribute to each of the said 3 siblings and Beneficiaries his or her respective ¹/₄ share of the proceeds of the acquisition;

  • (vi)…(ix)

  • (x) Any other remedy which this Honourable Court deems fit.”

9 The FDC was accompanied by a Statement of Claim (SOC) which repeats the allegations that the Assent to the Apes Hill property was obtained by the 1 ^st Defendant misrepresenting himself as the sole beneficiary to the property; further, that the property was sold without the Claimants' prior knowledge and consent.

The SOC alleges that the Claimants discovered the false claim and misrepresentation by the 1 ^st Defendant in relation to the property only in January, 2018 when the property was being sold. The SOC accuses the 1 ^st Defendant of perjury — sets out ‘Particulars of Perjury’ and repeats the relief set out in the FDC. There was no specific allegation pleaded in relation to the 2 ^nd Defendant having any part in the 1 ^st Defendant's alleged misrepresentation. The FDC and SOC merely sought relief against the 2 ^nd Defendant in the form of the injunction and...