Delrita Williams v Doreen Evadney Nolan

• Jurisdiction: Jamaica
• Judge: G. Fraser, J (Ag.)
• Judgment Date: 16 December 2013
• Neutral Citation: [2013] JMSC Civ 201
• Docket Number: CLAIM NO. 2012 HCV 00824 CLAIM NO. 2012 HCV 04172
• Court: Supreme Court (Jamaica)
• Date: 16 December 2013

[2013] JMSC Civ. 201

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Coram:

G. Fraser, J (Ag.)

(In Chambers NO. 10)

CLAIM NO. 2012 HCV 00824

CLAIM NO. 2012 HCV 04172

Between

Delrita Williams (Executrix in the Estate of Lucille Nolan, deceased)

Claimant

and

Doreen Evadney Nolan (Administratrix of the estate of Clifford Nolan)

Defendant

Consolidated With:

Between

Doreen Evadney Nolan (Administratrix of the estate of Clifford Nolan)

Claimant

and

Delrita Williams

1st Defendant

and

Winsome King

2nd Defendant

Husband and wife deceased no efforts made by wife to establish joint ownership during her lifetime — Whether joint ownership can now be established by Executrix of Wife's Estate — Can a Life Tenant claim Adverse Possession — Executrix of Estate claiming adverse possession in her own right — Sections 3, 4 & 30 Of Limitation Of Actions Act — Estate Contract and the Statute of Frauds — Laches.

THE APPLICATIONS

1 The application in the lead Claim No. 2012 HCV 00824 is brought by Ms. Delrita Williams in her capacity as Executrix of the Estate of Lucille Nolan – deceased. She is asking the Court to make the following orders in her favour:

• 1. That Lucille Nolan is the sole legal and beneficial owner of property situated at Lot 49 Buff Bay in the parish of Portland registered at Volume 1307 Folio 983 of the Register Book of Titles (herein after the disputed property), and that the title now in the name of Commissioner of Lands should be transferred to her estate.

• 2. That in the alternative Delrita Williams is entitled to the legal and beneficial interests in the property situated at Lot 49 Buff Bay in the parish of Portland registered at Volume 1307 Folio 983 of the Register Book of Titles, and that the title now in the name of Commissioner of Lands should be transferred to her.

2 The Defendant Mrs. Doreen Evadney Nolan who is the Claimant in the consolidated matter in Claim No. 2012 HCV 04172; is seeking similar orders in respect of the said property. Mrs Nolan is named as the Administratrix of the Estate of Clifford Nolan now deceased. She seeks the following orders:

• a. Declaration that Doreen Nolan, Pauline Nolan, Paulette Nolan and Isolyn Nolan are beneficially entitled to the said disputed property

• b. An order for Recovery of Possession against Delrita Williams and Winsome King

• c. Damages for trespass and/or use and occupation

• d. Costs

CRONOLOGY OF EVENTS

3 The both Claimants had initially pursued separate claims before the Supreme Court in Claims Numbers 2012 HCV 00824 and 2012 HCV 04172 respectively. On the 3 ^rd October 2013 an Order there be a consolidation of the both claims and that they be heard together. The basis of the order included considerations that the parties in both claims were the same; the issues in both claims were substantially the same and involving the ownership of the same disputed property and it was economical and convenient that both matters be dealt with in one hearing. The following is a synopsis of the chain of events that led to the both claims being brought before the court.

• I. Lucille and Clifford Nolan were allegedly married but no one has exhibited proof of this; none the less it is not being disputed by either side that the both deceased were husband and wife.

• II. Clifford Nolan as the evidence suggests entered into a written agreement dated 14 ^th July 1965 with the Ministry of Housing to purchase premises located at Lot 49, Oliver Park Housing scheme. This is in Buff bay, Portland and is land that is comprised in Certificate of Title registered at Volume 1307 Folio 983 of the Register Book of Titles. This document titled ‘ Memorandum of Agreement ’ is exhibited as ‘DW2’ to the Supplemental affidavit of Delrita Williams sworn to on 7 ^th November 2012.

• III. The Ministry of Housing is registered as proprietor on the said Title; however the same has acknowledged in writing on 31 ^st March 2011; that Clifford Obadiah Nolan is the beneficial owner thereof and is at liberty to have the title registered in his name. The title and letter are exhibited as ‘DN2’ and ‘DN3’ respectively to the Affidavit of Doreen Nolan sworn on 29 ^th June 2012.

• IV. Clifford Nolan died on the 14 ^th day of October, 1971 and a copy of the death certificate is exhibited to the Supplemental Affidavit of Delrita Williams as ‘DW3’; sworn to on 7 ^th November 2012.

• V. Letter dated 25 ^th May 1990 from the Ministry of Construction; addressed to Clifford Nolan advising of an outstanding balance of $871.98 on the payments/account as at 31st May 1990 for lot 49 Buff Bay, notice is exhibited as ‘DW5’ to the Supplemental affidavit of Delrita Williams sworn on 7 ^th November 2012. ( NB at this point Clifford Nolan had been deceased for some nineteen (19) years)

• VI. Exhibited as ‘DW6’ to the Supplemental Affidavit of Delrita Williams, sworn on the 7 ^th November 2012 is a letter dated 30th October 1990. The letter is addressed to Mrs. Lucille Nolan ‘Re: lot 49 Buff Bay – A/C 32–2318—Clifford Nolan (Deceased)’, and is acknowledging receipt of payment in the sum of $337.77.

• VII. As an exhibit in this case; is the last Will and Testament of Clifford Nolan dated 23 ^rd of July 1971. This will named Lucille Nolan as his Executor but no grant of Probate was applied for or obtained by Lucille Nolan during her life time.

• VIII. The Defendant/Claimant, Mrs Doreen Nolan has subsequently applied for Grant of Letters of Administration with Will annexed and was named as Administratrix of the Estate of Clifford Obadiah Nolan. The Grant of Letters of Administration with Will annexed dated the24th March 2011; is evidenced as ‘DN1’ to the Affidavit of Doreen Nolan sworn on29th June 2012

• IX. Under the will of Clifford Nolan; Lucille Nolan had been accorded a life interest in the disputed property. The remaindermen were named in the will to be Pauline Nolan, Paulette Nolan, Isolyn Nolan and Doreen Nolan.

• X. Lucille Nolan died on the 13 ^th April 1999 a copy of her death certificate is exhibited as ‘DW8’ to the Supplemental Affidavit of Doreen Williams sworn to on 7 ^th November 2012.

• XI. Mrs. Lucille Nolan executed her last will and Testament on the 19 ^th January 1994, the same is exhibited as ‘DW7’ to the Supplemental Affidavit of Delrita Williams sworn to on the 7 ^th November 2012.

• XII. Miss Williams applied for probate of Lucille Nolan's Will in solemn form and said was granted on 26 ^th July 2010, the document is exhibited as ‘DW1’ to the Supplemental Affidavit of Doreen Williams sworn to on the 7 ^th November 2012.

• XIII. Delrita Williams and winsome King have been in possession of the disputed property since the death of Lucille Nolan on the 13 ^th April 1999.

• XIV. Suit filed by Mrs Doreen Nolan in the Port Antonio Resident Magistrates' Court against Delrita Williams on 8 ^th April 2011. Plaint #103/2011; Suit filed by Mrs Doreen Nolan in the Port Antonio Resident Magistrates' Court against Winsome King on 11 ^th April 2011. Plaint #107/2011 are exhibited as ‘DN6’ to the Affidavit of Doreen Nolan sworn on 2 ^9th June 2012.

THE EVIDENCE

4 In support of their claims the parties filed and sought to rely on affidavits as follows:

• I. Supplemental Affidavit of Delrita Williams in support of Fixed Date Claim Form (CLAIM NO.HCV 2012/00824), sworn to on 7 ^th November 2012 and filed 9 ^th November 2012

• II. Supplemental Affidavit of Delrita Williams in support of Fixed Date Claim Form (CLAIM NO.HCV 2012/00824), sworn to, on 26 ^th March 2013 and filed on 2 ^nd April 2013; together with exhibited documents ‘DW1’–‘DW8’ inclusive.

• III. Affidavit of Doreen Nolan in support of Fixed Date Claim Form (CLAIM NO.HCV 2012/04172), sworn on the 29 ^th June 2012 and filed 24 ^th July 2012

• IV. Affidavit of Doreen Nolan in reply (CLAIM NO.HCV 2012/00824), sworn on the 29 ^th June 2012 and filed 23 ^rd July 2012; together with exhibited documents ‘DN1’–‘DN7’ inclusive.

5 The above four (4) affidavits were made to stand as the witnesses' evidence in chief and although all the parties were present1 and available for cross examination none was educed on either side. Counsel on both sides very helpfully provided written submissions of their arguments and in respect to Counsel for Mrs. Nolan some relevant case law in support of same. As it transpired the issues identified by the parties for adjudication are all issues in law. For convenience I will address the various claims separately and in the following order:

• A. On behalf of Miss Delrita Williams (as Executrix)

• B. On behalf of Miss Delrita Williams in her own right – adverse possession

• C. On Behalf of Miss Delrita Williams in her own right – As purchaser

• D. On behalf of Mrs. Doreen Evadney Nolan as administratrix.

A. CLAIM ON BEHALF OF MISS DELRITA WILLIAMS (as Executrix)

JOINT OWNER ISSUE (deceased wife and husband)

6 The argument is advanced that the late Lucille Nolan who was the sister of Miss Delrita Williams was the lawful spouse of the late Clifford Nolan. That the disputed property was purchased by both deceased and which they occupied together as the matrimonial dwelling; however only the name of Clifford Nolan appears on the purchase documents. The Court is being asked to declare that in those circumstances the purchase was a joint enterprise for the benefit of both deceased persons; that the property became matrimonial property giving rise to a presumption of equal interests in it as joint owners. I observe and must point out that not one iota of evidence has been presented to the Court in support of this bold assertion and not one precedent or other

authority has been proffered to ground this application. The issues as I have identified them to be are

• I. Was Lucille Nolan a joint owner?; and

• II. Could she assert any such claim for joint ownership after the death of Clifford Nolan?

• III. Can her Executrix assert...