David West and Others v James Wyllie and Others
| Jurisdiction | Jamaica |
| Judge | Lawrence-Beswick J |
| Judgment Date | 04 October 2012 |
| Neutral Citation | [2012] JMSC Civ 136 |
| Docket Number | CLAIM NO. 2007 HCV 02762 |
| Court | Supreme Court (Jamaica) |
| Date | 04 October 2012 |
[2012] JMSC Civ 136
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2007 HCV 02762
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Recovery of Possession — Lease with Option to Purchase — Caveat — Service of Notice to Warn Caveat — Section 52 Interpretation Act
The claimants, by amended fixed date claim form dated October 3, 2007 seek an order that the defendants deliver up possession of land to them. They also seek injunctions to restrain the defendants and to prohibit them from constructing any building on the property or from trespassing on the land. By Order dated January 21, 2010 the action was ordered to stand as if begun by ordinary Claim form.
The defendants in an amended counterclaim filed June 30, 2010 seek an Order for specific performance of the lease agreement made between the 1 st and 2 nd defendants and the late Mr. William Arscott. By Order dated June 17, 2010, the defendants were granted leave to join Ms. Sheila Smith as executrix as a defendant to the counterclaim, seeking relief of specific performance against the claimants and her, as executrix. They ask that the title of the property be delivered to the defendants' attorneys-at-law and that the claimants execute the transfer of the land to the 1 st and 2 nd defendants.
Mr. William Arscott owned about 24 acres of land, part of Spitzbergen, Manchester registered at volume 1260 folio 65 in the Register Book of Titles (the land). He died on March 6, 1994 and in his will dated July 18, 1988, he purported to devise his interest in the land to named persons in a specific manner.
Probate was granted in Mr. Arscott's estate on June 23, 1999 and thereafter on September 8, 2005, the land was transferred to the six claimants (“the Wests”) who were the persons named in his will. They are now the registered proprietors of the land. However, the two defendants, James and Lorna Wyllie (“the Wyllies”) claim an interest in the land and are in possession. The Wests therefore filed suit for recovery of the land.
Mr. Arscott had earlier, on March 1, 1988, leased the property to the Wyllies, with an option to purchase.
This option was not exercised before Mr. Arscott's death.
On March 7, 1994, the day after Mr. Arscott died, Mr. James Wyllie and Ms. Lorna Wyllie went to Mr. Arscott's house and delivered to Mr. Vincent Thomas, his employee a cheque, payable to Mr. Arscott. On that day also, a notice of caveat was issued by the Registrar of Titles, purporting to notify William Arscott of the existence of a caveat forbidding any change in proprietorship or dealing with the land. That caveat was dated February 3, 1994.
On April 5, 1994, the Wyllies wrote to Ms. Sheila Smith, executrix of the will, and the daughter of Mr. Arscott, indicating that they had an agreement with Mr. Arscott for lease and sale of the land. They wished to make a payment on the lease and wanted to be informed by her as to whom the payment should be made and where.
Ms. Smith through her attorney-at-law, by letter dated June 15, 1994 returned the cheque of March 1994 to Ms. Lorna Wyllie, stating that she did not know the purpose for the payment and also that she thought the cheque could not be negotiated as it was in Mr. Arscott's name.
Some two weeks later, on June 27, 1994, Mr. Owen Crosbie, attorney-at-law for the Wyllies, wrote that the cheque was for rental of the property and that there was a caveat on the property to protect the Wyllie's interest in respect of a lease and Sale Agreement of March 1, 1988.
Mr. Crosbie also in that letter of June 27, 1994 asked of the attorneys-at-law as to whether they were willing to accept all arrears of rent and/or $300,000.00 inclusive of all costs as agreed in the lease and Sale Agreement.
There was no response to this letter until January 25, 1995 when the attorneys-at-law wrote that they were applying for probate of Mr. Arscott's will and that they had no instructions concerning the property. Ms. Smith's evidence is that she was not contacted by the Wyllies after 1995 and thought they were no longer interested in the land. Probate was granted on June 23, 1999.
On July 16, 2003, an application to warn the caveat was lodged with the Registrar of Titles and a Notice to the Caveator dated October 9, 2003 was issued by the Registrar of Titles and directed to James Wyllie c/o Owen S. Crosbie & Company, 64 Duke Street, Kingston.
Meanwhile, Mr. Vincent Thomas, who had been an employee of the late Mr. Arscott and who was now Ms. Smith's caretaker visited the property on occasion. He observed that the farming activity which had earlier been pursued had ceased, and the property was not being maintained. There was no sign of possession by the Wyllies.
On May 3, 2007, Mr. Thomas observed surveying equipment on the property. Mr. Wyllie who was present told him that it was the neighbour who was surveying.
On May 4, 2007, Ms. Smith enquired at the Tax Office re property taxes concerning the land and was informed that an outstanding tax payment had been made in April 2007. She had not authorized anyone to make that payment. It was the Wyllies who had made the payment. Nonetheless, she herself paid the amount which she knew had been owed.
On May 12, 2007, Ms. Smith visited the property. She observed very little farm product present and no cattle rearing but she saw marl and concrete deposits. It was then that she saw Mr. Richard Wint, the 3 rd defendant, who said he resided in the house there, which Ms. Smith described as being make-shift. She testifies that he was there with no permission from the Wests or herself.
On June 1, 2007, a notice dated May 18, 2007 to quit the property within one month was served on the Wyllies and Mr. Wint on behalf of the Wests. On July 11, 2007, the Wests sued the Wyllies and Mr. Wint for delivery of possession of the property.
Analysis
Mr. Arscott's will dated 18 th July 1988 states, inter alia that:
‘…I give my six grandchildren namely, David West, Douglas West, Alrick West, Marshaleen Henriques, Jerome Smith, and Richard Smith, this property contains (sic) 24 acres more or less. It is now leased to one Mrs. Whily for five years with option to purchase for $300,000.00. If she purchases after clearing expenses (sic). The remaining balance must be equally divided among the children…’
It is these six (6) grandchildren who are the registered proprietors of the land against whom the Wyllies are claiming an interest.
The Caveat
A person who claims interest in land which is not registered in his name can seek protection of that interest under the Registration of Titles Act (the Act). Section 139 provides:
‘Any….person claiming any…interest in land under the operation of this Act…may lodge a caveat with the Registrar…forbidding the registration of any person as transferee or proprietor of…. such interest, either absolutely or until after notice of the intended registration or dealing be given to the intended caveator…..’
When a caveat is lodged concerning property, the Registrar of Titles' powers to deal with such property are restricted. He is required to notify the person who filed the caveat, the caveator, before certain dealings with the land.
Section 140 of the Act provides:
‘Upon the receipt of any caveat under this Act the Registrar shall notify the same to the person against whose application to be registered as proprietor, or….to the proprietor against whose title to deal with the estate or interest such caveat has been lodged….’
Thereafter the proprietor may summon the caveator to attend Court to show cause why the caveat should not be removed. Meanwhile the Registrar may not register any dealings with the land. Section 142 of the Act provides:
‘So long as any caveat shall remain in force prohibiting any……dealing with the….interest in respect to which such caveat may be lodged the Registrar shall not enter in the Register Book any change in the proprietorship….subsequent to the date on which such caveat was lodged…..’
After the letter dated January 1995 from the attorneys-at-law for the Wests informing the Wyllies that they were applying for probate for the will of the late Mr. Arscott, the next relevant evidence is that it was some eight years later, in 2003 that the Wests applied to the Registrar of Titles to warn the caveat.
The Act requires the Registrar to serve notice of a warning on the caveator and it provides for possible lapsing of the caveat after the service.
In this case therefore, it is important to determine if the notice warning the caveat were properly served on the caveator and if so, when the caveat might be taken to have lapsed.
Service of Notice of Warning of Caveat
The issue of when service of the notice of warning was effected was addressed inGeorge Hylton v Georgia Pinnock (as executrix of the estate of Dorothy Mclntosh, deceased) et ors 1 where one of the critical issues to be determined was the date of service of the warning of a caveat.
There the Court emphasised that Section 140 of the Act discloses no provisions as to the method of service in Kingston of the notice of warning the caveat and that Section 139 did not assist in this regard.
Section 139 provides:
‘No caveat shall be received:
(a) Unless some address or place within the city of Kingston shall be appointed therein as the place at which notice and proceedings relating to such caveat may be served;
(b)…A caveator may, however, give an additional address out of the said city at the foot of such caveat, in...
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