Walcott et Al v Walcott et Al

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Chase, J.
• Judgment Date: 28 April 1988
• Neutral Citation: BB 1988 HC 35
• Docket Number: No. 947 of 1983
• Date: 28 April 1988

High Court (Civil Jurisdiction)

Chase, J.

No. 947 of 1983

Walcott et al

and

Walcott et al

Mr. Louis Tull, Q.C. in association with Mr. Hutson Linton and Mr. Randall Belgrave for Plaintiff

Mr. Deighton Rawlins for Defendant.

Real property - Ownership and possession of land — Equitable principles.

Chase, J.

1 The parties to this action are related to each other by blood, and it is most unfortunate that the dispute could have been resolved without recourse to the court.

2 Ira Walcott, the plaintiff in the original action is the grandson of the defendant Garfield Walcott; and Garfield Walcott, the plaintiff in the counter-claim, is the father of the defendant Elsa Walcott. The subject matter of the dispute is land situated at Arsenal Playing Field, Jackson, St. Michael.

3 In his Statement of Claim, Ira Walcott alleges, inter alia, that –

….

3

Sometime during 1976, the Defendant made an oral agreement with the plaintiff for the sale by the Defendant to the plaintiff of a parcel of land situate at Arsenal Playing Field, St. Michael… and containing by admeasurement forty-three thousand five hundred and thirty-six (43,536) square feet for a purchase price of $4,500.00 4. On or about September 1, 1976 the Plaintiff remitted a Postal Order in the sum of 5, 555 DM or £1, 111, giving a conversion rate in. Barbados dollars of $5, 443.90 in respect of the said purchase price of the land and of legal fees and expenses. 11. On or about the 8th day of February,1983 and on subsequent dates the defendant notified and/or informed the plaintiff orally that he was terminating the agreement for sale and purchase of the said land. 12. The defendant has failed and/or refused and/or neglected to convey the said land to the plaintiff in accordance with the agreement.

4 The relief which the plaintiff now seeks from this court is –

• (a) a declaration that the Plaintiff has an interest in and is entitled to a lien on the said land for his moneys paid towards the purchase price together with the fees and expenses for perfecting title to the said land and in respect of the value of the dwellinghouse constructed thereon.

• (b) specific performance of the said agreement between the Plaintiff and the Defendant for the sale by the Defendant to the Plaintiff of the said land.

• (c) an injunction restraining the Defendant from selling the said land to another purchaser and also to restrain the Defendant whether by himself, his servants and/or agents from ejecting the Plaintiff's agent, the said Elsa Walcott from having possession of the land.

• (d) further or alternatively, damages for breach of contract.

5 By his defence Garfield Walcott, denies the allegations contained in the Plaintiff's Statement of Claim, and asserts that he is and was always in possession of the land. He further pleads that the Statement of Claim is bad in law and that it discloses no cause of action against him on the ground that the alleged agreement is not evidenced in writing or that there is no or no sufficient performance in point of law to sustain the action.

6 In his counter-claim the defendant alleges, inter alia, that –

• (a) Sometime during August 1977, he permitted his daughter Elsa Walcott to occupy a portion of his land and to place her chattel dwellinghouse on the land as a tenant-at-will.

• (b) Elsa Walcott in breach of the terms of occupation of the land commenced construction of a wall dwellinghouse on the land.

• (c) On or about November, 1980, he gave Elsa Walcott notice to “Quit and Deliver Up” possession of the land and in consequence of non-compliance he initiated proceedings against her in the Magistrate's Court for an order of ejectment which was duly made on April 6, 1982 for her to leave by December, 1982.

• (d) Elsa Walcott refuses to vacate the land and remains in unlawful possession.

7 The relief which the defendant now claims is –

• (a) possession of the land.

• (b) an injunction restraining Elsa Walcott and the Plaintiff whether by themselves, servants or agents or otherwise from trespassing on or in any other way interfering with the defendant, his servants or agents in the enjoyment of the land.

8 In her reply and defence to the counter-claim Elsa Walcott denies inter alia that Garfield Walcott permitted her to occupy the portion of land as his tenant-at-will. She further states that on or about September 17, 1977, Garfield Walcott granted her possession of the land as agent for Ira Walcott, and that she commenced construction of a wall dwelling-house upon the land on or about September 17, 1977. She further pleads that with the knowledge and consent of Ira Walcott she placed her chattel dwelling-house on a portion of the land on or about September 17, 1977. She therefore denies that she is in breach of the terms of occupation as alleged by Garfield Walcott and states that she is in lawful possession of the land as agent for Ira Walcott.

9 The evidence given by the Plaintiff Ira Walcott in support of his claim is that he lives in England, and what sometime in 1971 while on a visit to Barbados his grand-father Garfield Walcott agreed to sell him a parcel of agricultural land situated at Arsenal Playing field, Jackson, St. Michael for the sum of $4000.00. There was also some discussion concerning the fees that would be involved, and it was agreed that the plaintiff would remit the necessary amounts along with the sum agreed for the purchase of the land. According to the plaintiff, on his return to England he continued discussing the arrangements concerning the land with his grandfather in letters and on the telephone. These discussions related to the amount of money to be remitted to his grandfather. About September 1, 1976 he remitted a Postal Order payable to his grandfather in the sum of £1, 111. He kept the stub to that postal order in his possession which was produced and marked (Ex.W.l).

10 In 1977 he returned to Barbados and had further discussions with his grandfather about the land and with his grandfather's permission moved his mother's house onto the land at Arsenal. In his opinion he had possession of the land since he had sent the money to his grandfather. He and his grandfather also visited the Solicitors in connection with the land. This aspect of the evidence is as follows:

Garfield Walcott and I went to Cottle Catford with the intention to get the deeds for the property — the land in Jackson, St. Michael. I asked what it would cost to get the documents through, and he said $600 which I paid out of my pocket there and then. The receipt was made out in Garfield Walcott's name. I kept the receipt ever since. It was in September 1977. That was the first and only transaction with Cottle Catford.

11 The witness also stated that when he moved his mother's house to Jackson, Theophilus Walcott, son of Garfield Walcott assisted in the relocation of the house. At that time, Theophilus was living with his father at Welchman Hall, St. Thomas. He further testified to the effect that the land at Jackson was being cultivated by his grandfather's niece Sissie Walcott and that he sent $400 to his grandfather to pay Sissie for the work and crops she had put into the land.

12 It was during 1980 that he started to construct the dwelling-house on the land and in his opinion the value of the house was about $90, 000 — $100, 000. He asserts that at no time did Garfield Walcott object to the construction of the house. In 1980 a dispute arose in the family and he wrote his grandfather about it, but he never got a reply. On two occasions he telephoned his grandfather and on each occasion the telephone was hung up on him. He stated further that when he was having the plans for the construction of the house prepared, he discussed them with his grandfather and with Theophilus Walcott.

13 As to the actual construction of the house, he stated that his brother-in-law Alex Cox looked after that matter, while he sent money to his mother to pay the contractor.

14 Under cross-examination, the witness disclaimed any knowledge of his grandfather's intention to give the land to his mother and that that was the reason the grandfather took him to Cottle Catford. He contended that he paid the $600 to the Solicitors' Firm to have title to the land transferred to his name. He denied that the visit to Cottle Catford with his grandfather was for the purpose of arranging for a foreclosure suit give his mother title to the land. He disagreed with the suggestion that that was the reason his mother was allowed to move onto the land.

15 As to the dispute that arose in the family, he denied that he had beaten his grandfather and that it resulted in the grandfather then asking his mother to move off the land. He also contended that there was an agreement for the sale and purchase of the land. The purchase price was $4, 000.00 or $4, 500.00, but that he sent to his grandfather $5, 443 including an amount to cover the legal fees.

16 Concerning the construction of the house, he stated that construction started in May 1980 and that he left Barbados about June the same year. At that time the building had reached about 9' 6” at some points and 4' at other parts of the building. He admitted that he did not see his grandfather when this work was being done.

17 As to the title deeds to the land, he was not aware that any existed and that that was the purpose for ping with his grandfather to Cottle Catford. He also admitted that he was made aware in 1982 that his grandfather wanted to get his mother off the land, that the chattel house is still on the land and his mother is living in it. As to the partly completed building, he stated that it has never been occupied.

18 Elsa Walcott gave evidence on behalf of her son. This witness stated that when her son came to Barbados 1977 she was living on her father's land in Welchman Hall, St. Thomas. Thereafter, she moved to...