Clarence Scott v Ruby Ricketts

 
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[2014] JMSC CIV. 121

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV 5263 of 2010

Between
Clarence Scott
Claimant
and
Ruby Ricketts (O/C Ronj Walker)
Defendant

Latoya Stevenson for Claimant

Debayo Adeipe for Defendant

Claim for interest in the land — Registered land — Equitable estoppels — whether transfer defeated equitable claim

BEFORE: Justice David Batts

1

At the commencement, both parties indicated they were ready to proceed. The Claimant's Counsel made submissions on the admissibility of a document. This was what purported to be the surveyor's report of Mr. Damian Masters an attorney at law and a Commissioned Land Surveyor. Strenuous efforts to serve him with a witness summons had been unsuccessful. The Defendant had served a counter notice to the Claimants notice to adduce the document.

2

The document was not signed by Mr. Masters and the Claimant did not have a signed copy of it. I ruled that it could not be said to be an expert report made by the witness. The witness being absent and unavailable, the document had no probative value. The last 2 lines of Paragraph 6 of the Affidavit in Support of Fixed Date Claim Form filed on the 3 rd November 2010 were ordered struck out and exhibit CS3 to that affidavit removed.

3

The Claimant then applied to amend the Fixed Date Claim form to seek an order for exhumation of a body. The circumstances being that a burial occurred on the land some weeks before the commencement of the trial. The Defendant's Counsel opposed the application. I refused the application. Exhumation involves issues of public health and other concerns which this court as at present advised is not competent to assess. If successful the Claimant can seek such permits or orders in separate proceedings.

4

All witnesses were then asked to remain outside as the hearing of evidence commenced. The Claimant Clarence Scott then gave evidence. He is blind and his affidavit had been read over to him and his mark made. No objection was taken and his Affidavits dated 29 th October 2010 and 3 rd October, 2011 with attached exhibits stood as his evidence in chief, pursuant to Order made at Case Management on the 4 th October 2011.

5

Mr. Scott describes himself as a retired farm worker then 76 years old. He lived with his mother and his siblings on land owned by his father in Old Porus Manchester. His grandfather died in 1961 leaving his mother on the land. The Defendant is one of his 3 siblings. He being the eldest while she is the youngest.

6

The Claimant says he did farm work overseas. In 1967 he got married. His wife lived at his mother's home. In 1968 when his first daughter was born he told his mother he was going to buy land to make a house for his family. He says his mother said,

‘No, have enough land. I can give you a little piece to make a little house. She point out the land to him. He said that it stretched from the tomb at the front to just above the pond. It was about a square and a half of land.’

7

The Claimant said he built a house there. It took time but he built one room in 1968; in 1979 the house consisted of 3 rooms. Eventually a verandah was built.

8

The Claimant says that in 1986 his mother gave him a piece of paper written by Mr. Maxwell and that it was for the land she had given him. That paper is Exhibit CS4. The document is dated 19 th January 1986 and commences with the words—

‘I Lucille Nation give one half square of my land….’

9

It ends with a description “the said piece of land is bounded as follows on the north Joseph Douglas, South Lucille Nation, east George Wright West Manchester Parish Council Road.’ It is signed by Lucille Nation and witnessed by S. Maxwell.

10

The Claimant states further that his wife went to Cayman and worked for over 18 years. In that period she sent money and further improvements and additions to the house were made by them. In 2003 his mother, Lucille Nation died at the age of 90.

11

The Claimant says he had been living on the land and no one has molested him for the entire time. They continued to do so even after his mother's death. He lost his eyesight in 1994.

12

In 2010 his sister Rubie Ricketts told him that he should not build any more on the house and that she did not know how his family would make out after he died. She had a solicitor write him a letter in mid 2010. That letter is Exhibit CS6 and is a follows:

Mr. Clarence Scott

Old Porus

Manchester

Jamaica

10th March, 2010

Dear Mr. Scott ,

I am advising and assisting your younger sister Ronj Walker, and she has consulted me regarding the land she owns at Old Porus and your occupation of part of it with your family.

She has asked me to write to you to remind you that your occupation of the land in question is by her licence only and does not confer any property rights upon you or any member or members of your family.

The period of your licence to occupy is for your life only and does not extend for any longer thereafter than is reasonably required for your family to remove their goods and effects from the site.

I hope you are clear as to these points and that you will ensure that your family members also thoroughly understand their position.

Yours sincerely ,

Robin J. Oliver

Rubie it should be noted was living in England. In February 2010 his nephew Alfred (Freddie) put up a fence between the houses and fenced off his back yard. He as a result cannot get to his fruit trees and bananas that are beyond the fence in his backyard. The Claimant only became aware that his sister's name was on the title to the land in 2010.

13

In his affidavit filed on the 4 th October 2011 the Claimant says he only seeks the one square and half of land his mother gave him. He says there was no mango tree there when the land was given to him. Further the coconut tree was planted by his son. He says Alfred fenced the land so he cannot even access the back door to his house. The Claimant says cultivation was done by himself and his sons. The Claimant says that he did have the land surveyed and notice was served on Alfred. Alfred did not object and walked the land with the Surveyor. Alfred subsequently pulled up the pegs put in by the surveyor. He said,

‘I called him and spoke to him about pulling up the pegs. I said to him ‘I grow you and oonuh a run me out.’ He said to me that ‘anything I am doing is on behalf of my aunty.’ I was upset I started to cry.’

14

The Claimant says he planted banana, coconut and cash crops on his land in front of the pond. It is since the letter from the solicitor in 2010 that his sister and Alfred started to restrict him.

15

When cross examined he admitted that the land was never surveyed while his mother was alive, nor was it fenced off. He admitted he had not paid any property tax for the land. It was suggested to him that in 1986 when his mother gave him the letter she was no longer the owner of the land. He denied that and said he knew nothing about that.

The following exchange occurred,

‘Q. mother did not mention tomb or pond in 1986.

A. Don't know

Q. the paper what it say.

A. that nobody must molest me

Q. she mention tomb and pond in paper

A. yes

Q. why the paper say sir?

J: Registrar please read the document to the witness (document read)

Q. no mention of pond and tomb.

A. the paper is alright.

Q. no mention of pond and tomb

A. agreed’

16

The Claimant admitted that the Defendant rebuilt his mother's house. Further that she was a regular visitor even after she migrated. He admitted that in 2009 his wife was prevented from building a pigsty about 1/2 chain from his house. It was the Defendant who said no pigsty was to be built. When it was suggested to the witness that some old coconut trees were there he said,

‘Please sir, 5 coconut tree, was in front and Gilbert lick down everyone. No dead coconut tree in there.’

17

When it was suggested to him that he had not been occupying and cultivating 1 1/2 squares of land the witness said.

‘Mi a old man mi nuh tell lie. Mi plant every little thing.’

18

Mrs. Olga Scott the Claimant's wife then gave evidence. Her affidavit dated 15 th October 2010 stood as her evidence in Chief pursuant to the Order at case Management. She says that after her marriage to Clarence she went to live with Lucille Nation her mother in law. Her evidence in chief corresponded with her husband's, in particular that her mother in law had walked the land with her son, pointed it out, and that it extended from the tomb at the front to just above the pond.

19

In cross examination the witness stated that the source of her knowledge that the Claimant was given 1.5 square of land is the document signed by Lucille Nation exhibit CS4. She contradicted a portion of her affidavit in that she said her husband never sent money home to pay taxes. The cross...

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