Headley v Barrington Headley

• Jurisdiction: Jamaica
• Judge: FORTE, J.A. , DOWNER. J.A.
• Judgment Date: 26 March 1999
• Neutral Citation: JM 1999 CA 18
• Judgment citation (vLex): [1999] 3 JJC 2611
• Court: Court of Appeal (Jamaica)
• Date: 26 March 1999

IN THE COURT OF APPEAL

COR:

THE HON. MR. JUSTICE FORTE, J.A THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE GORDON, J.A

BETWEEN

BYRON HEADLEY

PLAINTIFF/APPELLANT

AND

BARRINGTON HEADLEY

DEFENDANT/RESPONDENT

Georgia Gibson-Henlin instructed by E.H. Williams & Associates for the Appellant

Mr. Raymond King instructed by Messrs. Watt, King & Robinson for the Respondent

REAL PROPERTY - Recovery of possession - Deed of gift - Tenant at will

FORTE, J.A.

1 This is an appeal from an order made by the Learned Resident Magistrate for the parish of St. James refusing to grant recovery of possession of land to the appellant.

2 The land in question as described in the plaint is land known as Brissett land bounded on the North by Catherine Davis, South by Clinton Davis and the late John Pinnock, East by the main road from Cambridge to Ducketts, and West by land owned by Clinton Davis.

3 Between the appellant and the respondent there were two contesting claims to the property, the former claiming on the basis of a Deed of Gift purportedly executed on the 29th September, 1987 by the owner of the land, Mabel Fullett the aunt of both parties who are cousins, and the latter through Mrs. Fullett's Will which was executed on the 9th July, 1990. The appellant alleged that the respondent who occupies the property is a tenant at will, and having served him the necessary notice to quit, which he disobeyed, this action has been brought.

4 Evidence was advanced at the trial as to the circumstances surrounding the signing of the Deed of Gift, and challenge was made by the respondent, as to the credibility of the witnesses who testified in that regard. There was also evidence from both sides, concerning the care of the owner of the land, during her latter years, when her health was fading and during which time she was dependent on the care of others. Each party contended that he was the kind benefactor in that regard, seeing to her needs, and meeting the expenses for her care. It is on this basis each maintained that Mrs. Fullett in appreciation granted to them the property in question.

5 The Learned Resident Magistrate did not state definitively what account of the facts she accepted and apparently was content to decide the case on the legal question as to the effect of a Deed of Gift which was unsealed, a factor that could not be disputed by the appellant. Even so, the Learned Resident Magistrate made some statements in her reasons for judgment which suggest that she preferred the evidence of the respondent in that regard.

6 She stated:-

"(i) The validity of the Deed of Gift came into question when both Scarlett and Morris(witnesses for the appellant) contradicted each other as to when and where the Deed of Gift was signed, and as to whether or not Mabel Fullett decided to make an 'X' mark and he did not know if she could read or write;

(ii) To my mind and on a balance of probabilities it is more likely that Mabel Fullett would give her property to the person who was looking after her prior to her death, and to the making of the Will;

—

The weight of the evidence supports the Defendant that he lived at Mrs. Fullett's home for many years, and he was the one who was taking care of her up until death".

7 On those findings it appears that the Learned Resident Magistrate on a balance of probabilities rejected the appellant's testimony as to the Deed of Gift and concluded that the account given by the respondent was the truthful account and that Mrs. Fullett passed the property through her Will to the respondent.

8 Nevertheless the Learned Resident Magistrate considered the legal effect of the unsealed Deed of Gift as the main issue in the case. This is obvious from the following words extracted from her reasons:

"After hearing the evidence on both sides, it is my opinion that even if both the Deed of Gift and the Will were made by Mabel Fullett the main issue to be determined is the validity of the Deed of Gift and whether or not it did in fact transfer ownership of the property to the plaintiff".

9 Then the Learned Resident Magistrate found that the Deed of Gift was ineffective in transferring Title to the appellant because 'it was not duly sealed i.e. executed as is required by law' and thereafter concluded that the Will properly transfers the land to the respondent; which I understand to mean that Mrs. Fullett bequeathed the land in question to the respondent.

10 Before us the appellant was content to argue that the Learned Resident Magistrate fell into error when she found that 'the un-sealing of the Deed of Gift' is fatal to its execution and did not address any arguments to the facts of the case.

11 It was argued that by the common-law it is required that a Deed be sealed. That that is so, is evident in the definition of a Deed as set out in Norton on Deeds Chapter 1 treating with the form and execution of Deeds at pg. 3. It states:

"A deed is a writing (i) on paper, vellum or parchment, (ii) sealed and (iii) delivered, whereby an interest, right, or property passes, or an obligation binding on some person is created, or which is in affirmance of some act...