Caren Cranston v Tamazine Samuels and Gairy Toorie
| Jurisdiction | Jamaica |
| Judge | A. Nembhard, J |
| Judgment Date | 27 April 2018 |
| Neutral Citation | [2018] JMSC Civ 73 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2016 HCV 00141 |
| Date | 27 April 2018 |
[2018] JMSC Civ 73
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
A. Nembhard, J (AG.)
CLAIM NO. 2016 HCV 00141
In the Matter of all that parcel of land part of Port Morant in the parish of Saint Thomas containing by survey One Rood Twenty-six Perches and Four Tenths of a Perch of the shape and dimensions and butting as appears by the Plan thereof and being part of the land comprised in the Certificate of Title registered at Volume 1323 and Folio 443 of the Register Book of Titles
and
In the Matter of the Registration of Titles Act
and
In Equity
and
Mr. Leroy Equiano and Miss Denise McFarlane instructed by Marvalyn Smith for the Claimant
Miss Lavern Gayle and Miss Sarah Bailey instructed by Scott, Bhoorasingh & Bonnickfor the Defendants
Equity - Whether claimant has an equitable interest in property — Proprietary Estoppel — Whether claimant's evidence is hearsay evidence — Part 30 of the Civil Procedure Rules 2002
The Claimant, Caren Cranston, by way of a Fixed Date Claim Form which was filed on the 18 th day of January 2016, seeks the following Orders of the Court:-
- A Declaration that the Claimant is entitled to a one hundred percent (100%) interest in the 2nd house located at the back of the property situate at Harbour Road, Port Morant, in the parish of St. Thomas; 2. An Order that the 1st and 2nd Defendants compensate the Claimant for the full value of the second house on the subject property based on the current market value; 3. That the Defendants are ordered to pay the market value of the second house within ninety (90) days; 4. An Order that should the 1st and 2nd Defendants fail to comply with number three (3) above that the Claimant's name be added to the Title and that she be allowed to live peacefully and unmolested by the 1st and 2nd Defendants; 5. That the Registrar of the Supreme Court be authorized to sign all and any documents necessary herein, if either party refuses to carry out the Order of the Court.
The Affidavits of Caren Cranston, which were filed on the 18 th day of January 2016 and the 30 th day of June 2017, respectively, were permitted to stand as her evidence in chief.
She gave evidence that she resides at Harbour Head Road, Port Morant, in the parish of St. Thomas and at 69 Fredd McLaren Boulevard, Markham, Ontario, Canada and is an accounting professional. She is the niece of the 1 st Defendant, Tamazine Samuels and the cousin of the 2 nd Defendant, Gairy Toorie.
The property in dispute is located at Harbour Head Road, Port Morant, in the parish of St. Thomas and is family property where she has lived with her mother, Victoria Lindsay, undisturbed and unmolested for more than forty (40) years.
There are two (2) houses on the said property, one (1) located at the front of the said property while the second is located at the rear. It is the second house that is in dispute in this case (disputed house).
The disputed house was never the original house on the property. It was built by her maternal grandfather, Charlton Lindsay, as a two (2) bedroom board and concrete structure which he gave to Victoria Lindsay, as a wedding gift. Victoria Lindsay lived there until her death in June 2015.
Relying on the averments made by Charlton Lindsay, Caren Cranston and Victoria Lindsay have improved the disputed house from its original board structure. The disputed house currently is a two (2) bedroom structure with all the modern amenities, the value of which is Three Million Dollars ($3,000,000.00) with a reinstatement value of Four Million Seven Hundred Thousand Dollars ($4,700,000.00).
Tamazine Samuels never resided in the disputed house. She migrated to the United States of America (USA) in the 1960s and had no connection with it until 2000, when she returned to the Island.
The disputed house was badly damaged by Hurricane Gilbert in 1988. Caren Cranston gave Victoria Lindsay money to effect major repairs to its roof and structure.
After the passage of Hurricane Gilbert, the vertical posts on which a part of the disputed house rested needed to be reinforced and the roof, windows and doors had to be changed. About two (2) years later, extensive work was done on the disputed house. The flooring was changed from board to concrete, the foundation was reinforced and a bathroom and a kitchen were added, along with concrete steps and awnings. The windows and doors were replaced with more modern ones, the roof was completely changed, the old, fragile concrete walls were replaced and the board sections were replaced with concrete.
These renovations were made over a period of time.
Tamazine Samuels raised no objections to these renovations being made and made no claim to the disputed house. She assisted with these renovations by withdrawing moneys from a bank account of Caren Cranston and Victoria Lindsay and making payments to the workmen and by purchasing material.
In cross examination Caren Cranston denied that she grew up in the house that is located at the front of the premises and that the disputed house had always been rented to tenants.
She testified that her parents got married in 1964 or 1965.
The Court heard next from Wayne Cranston, whose Affidavit, which was filed on the 30 th day of June 2017, was permitted to stand as his evidence in chief.
Wayne Cranston is the sister of Caren Cranston and the son of Victoria Lindsay. His evidence was that in 1974 he, along with his mother and siblings, went to live in the disputed house. He remembered the disputed house as being an old two (2) bedroom dwelling with a living room and a small veranda. The roof was made from zinc and board and there was no kitchen or bathroom attached.
His evidence supported that of Caren Cranston in respect of the renovations and repairs made to the disputed house by his mother and sister. All the windows, doors, flooring, walls, as well as the roof, had to have been changed after the passing of Hurricane Gilbert.
The next witness called on behalf of Caren Cranston was Mr. Winston Pearcy. His affidavit, which was filed on the 30 th day of June 2017, was permitted to stand as his evidence in chief.
Winston Pearcy's evidence was that it was he who built the disputed house, on the instructions of Charlton Lindsay, between 1962 and 1963.
As a result of the passage of Hurricane Gilbert the roof of the disputed house was damaged.
In 2000 he built a bathroom, kitchen, sewer toilet on the disputed house and replaced the damaged roof with a zinc roof. This work he indicated was completed within two and a half months.
Tamazine Samuels paid him to do this work on behalf of Caren Cranston and her mother.
Nicola Fraser, whose Affidavit filed on the 30 th day of June 2017 was permitted to stand as her evidence in chief, gave similar evidence as to the original composition of the disputed house and the damage it sustained as a result of the passing of Hurricane Gilbert.
That was the case for the Claimant.
The Court heard from Miss Tamazine Samuels, the 1 st Defendant and her Affidavits filed on the 13 th day of April and the 31 st day of August 2017, respectively, were permitted to stand as her evidence in chief.
She testified that she is one of the registered proprietors of the disputed house. She contended that the disputed house was the house that was originally built on the land. A second house was built on the land in the 1970s, in which she currently resides.
Her evidence was that she gave Victoria Lindsay permission to occupy one (1) room in the original house. Victoria migrated to Canada and returned to Jamaica in or around 1998. Upon Victoria's return to the Island she (Tamazine) gave her (Victoria) permission to live in the disputed house until her death with instructions to carry out no improvements to it.
Without her permission Victoria added a kitchen, bathroom and an awning to the disputed house.
Tamazine Samuels contended that the disputed house was never a dilapidated board house and that Caren never resided in the disputed house. The disputed house was always rented to tenants.
In or around 1966 she migrated to the USA. Victoria was allowed to add a kitchen and a bathroom to the disputed house for her own comfort and had no permission to carry out any of the other improvements made to the disputed house.
Tamazine Samuels contended further that Winston Pearcy was not responsible for the initial construction of the disputed house and that she made no payments to him on behalf of Caren and/or Victoria Lindsay, for work that he had done on their behalf.
The disputed house was never disposed of by way of a gift to Victoria Lindsay.
In cross examination certain inconsistencies in her evidence were highlighted. These were inconsistencies in her evidence contained in paragraphs six (6), ten (10) and eleven (11) of her Affidavit filed on the 31 st day of August 2017 and paragraphs four (4), five (5) and nine (9) of her Affidavit filed on the 13 th day of April 2017, respectively.
The final witness from whom the Court heard was Miss Cynthia Peart. Her Affidavit, which was filed on the 31 st day of August 2017, was permitted to stand as her evidence in chief.
Cynthia Peart gave evidence that Tamazine Samuels is her older sister. She stated that her father showed her the Certificate of Title to the property on which the disputed house is located and that Tamazine Samuels' name is on the said Certificate of Title.
She testified that it was Tamazine Samuels who built...
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Arlene Elmarie Peterkin v Natural Resources Conservation Authority
...by evidence is not the truth of the statement but the fact that it was made.” 10 In Caren Cranston v Tamazine Samuels and Gairy Toorie [2018] JMSC Civ 73 at paragraph 69 of her judgment, Nembhard J defined hearsay thus: “ According to the rule against hearsay, an assertion other than one ma......