Jacqueline Baldie v Everaldo Cargill
| Jurisdiction | Jamaica |
| Judge | Thomas J. |
| Judgment Date | 23 October 2020 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2010/ HCV00930 |
| Date | 23 October 2020 |
[2020] JMSC Civ 218
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
CLAIM NO. 2010/ HCV00930
and
(Executors — Estate of Theresa Flemmings)
Sherica Taylor instructed by Bertram Anderson for the Claimants.
Keisha A. Spence instructed by Tameka Jordon for the Defendant.
Land law — Objection to Survey — Adverse Possession — Proprietary Estoppel.
This claim concerns an unregistered parcel of land located in Hampton Court, St. Thomas. Ownership of the said parcel of land “the disputed land” is the live issue in the claim.
The Claimants are the executors in the Estate of Theresa Flemmings. By way of a Re-Issued Fixed Date Claim Form filed October 13, 2010, they seek following remedies:
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(i) A Declaration that Theresa Flemmings is the beneficial owner of all that parcel of land part of Hampton Court in the parish of Saint Thomas containing by estimation four and one-half (4 1/4) ( sic) squares more or less (hereinafter called “the said property”).
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(ii) An Order that the said Veronica Flemmings and or Theresa Flemmings be allowed to conduct a survey of the said property.”
The Defendant is sued by virtue of the fact that he has raised an objection to attempts to conduct a survey of the disputed land.
The original Fixed Date Claim Form initiating this matter was filed on March 2, 2010. At the time of filing, the named Claimant was Veronica Flemmings, the daughter of Theresa Flemmings who, acting under a duly registered Power of Attorney, initiated the matter on her mother's behalf.
Theresa Flemmings died on January 31, 2011. The Power of Attorney having become extinguished upon her death, Veronica Flemmings was precluded from proceeding as the claimant in her representative capacity. With a view to continuing the claim, and seeking the abovementioned remedies, for the estate of Theresa Flemmings the named executors Jacqueline Baldie and Carl McMurrin were substituted as the Claimants in the matter.
The Defendant, Mr. Everaldo Cargill, is the sole witness for the defence. He contends that the disputed land belonged to his grandmother, Elizabeth Laing. In the year 2009, he objected to a survey being done on the disputed land. His objection was grounded on his belief that the disputed land belonged to his grandmother, Elizabeth Laing.
The Claimants, who are desirous of having the disputed land surveyed with a view to bringing it under the operation of the Registration of Titles Act, now seek declarations and orders as to ownership in favour of the estate of Theresa Flemmings.
The mode of trial of this claim was twofold; it was conducted primarily by way of videoconference, however, one witness, Veronica Flemmings, appeared in person. While there is provision for a prior filed witness statement or affidavit to stand as the witness' evidence in chief with the permission of the court, the circumstances of the trial were such that the witnesses who appeared via videoconference were constrained to giving viva voce evidence.
Veronica Flemmings' affidavit evidence was permitted to stand as her evidence in chief. She states that prior to the death of her mother Theresa Flemmings and her father Thadeus Flemmings, the disputed land was gifted to them by way of a devise under the last will and testament of one Leonard Harris, late of Hampton Court, in the parish of St. Thomas, dated September 1, 1979. The devise reads as follows:
“I give and bequeath to Mr. Thadeus Flemmings and his wife of Hampton Court in the parish of St. Thomas four and a half square of land more or less (4 1/2 sqs) with my dwelling house and furniture situated at the said Hampton Court because in all my sickness and needs in life they are the persons who help me know [sic] one else”
Leonard Harris' Will was admitted to probate on February 1, 1980.
Ms. Veronica Flemmings asserts that Leonard Harris derived his title from his mother Elizabeth Laing, who, in her last will and testament, dated July 5, 1954, gifted to him six (6) squares of land in Hampton Court in the parish of St. Thomas. The disputed land forms a part of that said six (6) squares.
She says further that subsequent to the Grant of Probate of Leonard Harris' Will, her parents Thaddeus and Theresa Flemmings, who were already living on the disputed land, continued living on the land and caused a concrete structure to be built thereon. Thaddeus Flemmings also, on March 8, 1989, caused a survey of the disputed land to be conducted.
Thaddeus Flemmings died in 1994. However, his wife Theresa Flemmings and his children, to include Veronica Flemmings, continued to occupy the disputed land. She says that her parents took steps to have their names added to the to the Tax Roll for the disputed land, and since then, they have been paying the taxes.
She says further that Theresa Flemmings made attempts to have the disputed land resurveyed to establish boundaries, with a view to obtaining a registered title. However, she was met with an objection from the Defendant, Mr. Cargill, on the basis that the disputed land does not belong to her.
On cross examination she maintains that her parents are owners of the disputed land which they inherited under the Will of Leonard Harris. She states that before the grant of probate, they were living on the land but in a different house. They then moved out of their house and moved into Mr. Harris' house. That is where they lived until they died.
Ms. Baldie is one of the executors in the estate of Theresa Flemmings. Her evidence is that she came to know Theresa Flemmings in 1984, when she started working at the Hampton Court Basic School. Theresa Flemmings was the Principal of the school. At that time, Theresa Flemmings was living on the disputed land along with her husband, her children, grandchildren and two church members, Ms. Margaret and Mr. Miller. Theresa Flemmings, she says, continued living on the disputed land even after the death of Thaddeus Flemmings in 1994.
She says that the Hampton Court Basic School is on the same property on which Theresa Flemmings lived. She says she has seen a copy of the Will of Leonard Harris which devised the disputed land to Thaddeus and Theresa Flemmings and which directed that the Basic School is to remain on the land as long as the Government continues to take care of it. She recalls that in the year 1997 renovations were conducted on the Basic School by the Ministry of Education. For the purpose of those renovations, a copy of Leonard Harris' will was given to the Ministry. There were no objections to the renovation. She worked at the Hampton Court Basic school for 25 years, leaving in the year 2012.
On cross-examination she admits that her knowledge of the land as it relates to Mr. Harris came from the reading of the will of Leonard Harris and what she was told by Theresa Flemmings and others about the land. She says she knows Theresa Flemmings was paying property taxes in her own name, because she got copies of the property tax receipts which were sent to the Ministry of Education. She admits that she has not shown the court any of those property tax receipts, but says, the property tax was in relation to the 4 1/2 squares and for the church. That means that property tax was paid for more than 4 1/2 squares of land.
Mr. McMurrin, the other executor in the estate of Theresa Flemmings states that he came to know Theresa Flemmings as a boy, and has always lived across the road from the disputed land. He says throughout all his years, he has known Theresa Flemmings and her family to be living on the disputed land. In October of this year he will be 65 years old. In 2009 he was 54 years old. The Flemmings have lived on the property during that entire time. There were also two members of the church who he says did not have anywhere else to live, living on the church property. These persons are Ms. Margaret, and Mr. Miller who was an elder of the church. He says that there is a church on the land separate from where the Flemmings were living. The church, he says was” opposite from the house”. Theresa Flemmings and other tenants were living on the land. He understands tenants to mean “ someone living on the land”.
He says Mr. Miller was the tenant and was paying lease to Theresa Flemmings. He states that he knows that Mr. Harris was the “parson” for the church as he grew up seeing Mr. Harris running the church, while he, Mr. Harris was living same place on the property. Theresa Flemmings and her husband lived on the property with Mr. Harris.
Mr. McMurrin further states that he knows that Mr. Harris died sometime in 1979 and that in 1979, he was still living same place in Hampton Court. After Mr. Harris died the Flemmings were living same place on the property. Up until then he did not know of any issues with the property. Before Theresa Flemmings died her husband died. Before she died, she made a will to her children. He did not know of any issue with the land until Veronica's mother passed off.
He also states that he does not know Everaldo Cargill. The only Cargill he knows are Tessa Cargill and Bubsie Cargill. He knows that Bubsie was living on a piece of the land and Tessa has a house behind where Bubsie lived. Mr. McMurrin further testifies that the “ land is a big piece of land from up by the Cross-Road going straight down to the bottom down to Rocky Point”. He states that “ the first piece of the land is where the church is, where the Flemmings live and there is another piece. Starting from the Cross Road going towards Rocky Point, Bubsie's piece is first. After Bubsie's piece, you find the church and the yard where Theresa...
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