Mageleatha Leanora Edwards & Anormp; Ors v Anthony St Elmo Fray

 
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[2016] JMSC CIVIL 2

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Coram:

Batts J.

CLAIM NO. 2013 HCV 03250

Between
Mageleatha Leanora Edwards
1 st Claimant
Andy George Louis Alexander Fray
2 nd Claimant
Peter Leslie Fray
3 rd Claimant
and
Anthony St. Elmo Fray
Defendant

John Graham and Barbara Hines instructed by Barbara Hines & Associates for Claimants

Nadine Lawson for the Defendant.

REAL PROPERTY - Title - Claim by Executor - Dual registration of Title - Whether second registered Title eclipses the first - Whether registration obtained by fraud - Possessory Title - Limitation of Actions - Whether one party obtained a possessory Title

1

This matter was listed before me for a trial in chambers. Having perused the pleadings and satisfied myself of the issues, I enquired of the attorneys the reasons for a hearing in Chambers. None was advanced and indeed the attorneys agreed that a trial in open court was appropriate. I therefore adjourned into open court and commenced the trial. The issues involved a determination of legal and factual matters, were not of a matrimonial or private nature and were therefore to be decided by trial in open court.

2

Ms. Lawson for the Defendant referenced an application filed on the 17 th June, 2015 seeking —

  • a) Permission to file affidavits

  • b) A variation of the Orders made at Case Management

  • c) Relief from Sanctions

She admitted the Defence was not now ready to commence a trial.

3

Mr. John Graham opposed the application. He alluded to one issue which he said no amount of adjournments could cure. This had to do with the dual registration of land. The Registrar of Titles had sent a representative, in response to a witness summons, who would show that at the time the Defendant applied for first registration of title there was already in existence a Registered Title for the said land. At this juncture the parties asked for the matter to be stood down until 2:30 p.m. for discussions.

4

At 2:50 p.m. the trial resumed. The parties then agreed to the following order:

1
    The Defendant does on or before the 30 th June, 2015 deliver up to the Registrar of Titles the Duplicate Certificate of Title for all that parcel of land part of Worchester in the parish of St. James registered at Volume 1302 Folio 160 of the Register Book of Titles for the purpose of cancellation. 2. The matter is adjourned part heard to 9:30 a.m. on Friday 26 th June, 2015 pending settlement. 3. The representatives of the Registrar of Titles are excused from attendance at court on that date.
5

When the matter resumed on the 26 th June 2015 I was advised that negotiations had broken down. The Claimant was ready to proceed with the trial. The Defendant's counsel applied for an adjournment to allow for time to file further affidavits and for compliance with case management orders. She explained that the reason for non-compliance was because of difficulties getting witnesses to come into Kingston. The Defence she advised has as yet filed no affidavits. I enquired of my clerk what would be the earliest available date for this trial and he said sometime in February 2017. At this juncture Claimant's counsel indicated that given the way the issues were now aligned he would waive the need for affidavits or witness statements if the Defendant was asked to give evidence first. This is because the question of the registered title being out of the way the real issue was now whether the Defendant could establish a possessory title. Defence Counsel agreed to this proposal and requested a 15 minutes conference with her client and witnesses.

6

I therefore decided to commence the trial of the matter. The Defendant would begin and would be allowed to give evidence in chief orally.

7

The Defendant Anthony St. Elmo Fray then gave oral evidence in chief. He resides at Johns Hall Worcester District St. James. The 17 th July 2015 would he said, mark his 60 th birthday. He said he had been living at that address since ‘around 1980’ and he is an autobody repairman.

8

Mr Stanley Fray was his father and had gone to England. He knew this because his mother told him so. He was 15 years old when he first made contact with his father and that was by letter. His father used to write to his mother and that's how he obtained his father's address. His father and himself exchanged letters until in or about the year 1980. His father told him about his brother Orville Fray. He eventually met Orville in Potosi St. James in or about 1972. His father was the one who told him about the land in Worchester. He discussed the land with his brother. Orville said he was going to farm one section and that he could farm another. The Defendant said he farmed plantain, banana, yam, cocoa, pineapple, sugarcane all at one time. Orville planted the same things. He said he farmed for his own use and for his family. He was then living in John's Hall. There was no structure or building on the land when they started farming. He said he started farming in 1974. Orville also started at that time. He says he still farms the same section of the land today.

9

He stated that Orville went to live on the land before he did, that was in or about 1979. Orville had started constructing a house in 1975 or 1976. The Defendant started constructing a house in 1978 and went to live on the land in 1980. He was sure it was in 1978 he started construction because he had made notes in a book. This was put in as exhibit I. He said Orville assisted with the construction of his house. His house was made of concrete. Both his father and Orville are now deceased. Orville died in 1985.

10

The witness said that Orville's son Andy started to make a fuss after Orville died. Eventually the confrontation with Andy became physical. This was in or around 1989 or 1990. Andy complained about the goats he (the Defendant) was rearing. The police were called and ‘Andy chop me before the policeman.’ Thereafter he said Andy Fray started fencing the property. The fence separated his section.

11

In 1996 the Defendant obtained a survey of the land. He had the whole property surveyed. He said he was the only one paying taxes on it. He then got a diagram and used it to apply for title. He states he was unaware of an existing title. He went to the titles office himself to make the application. He took the application form to the titles office and in 1997 received a title. The first time he became aware that another title was in existence was in 1999 and this by letter. (See Exhibit 2 letter dated 14 th December 1999).

12

The witness said there were now three houses on his side of the land. A claim against him was only commenced in 2013. The witness was asked why did he apply for title for the whole land, and answered thus:

‘I was preserving. I passed and my brother. I was only one paying tax but I get a title in my name. Did not have knowledge to cut of mine.

Q: you only claim part

A: just securing the land.’

In answer to some questions about the fence, the witness stated that the fence fully enclosed his portion. The matter adjourned to the 29 th June, 2015.

13

When cross-examined the witness admitted that Meletta Scott was his mother. Further that his father's name was not on his birth certificate and was added by deed poll. An agreed Bundle of documents was put in as Exhibit 3 . The witness denied asking his father permission to farm the land although he told his father he was doing so. He said he knew about the land because Orville told him about it. He admitted Orville was much older than he was and could have been 26 years older. The following important exchange took place.

‘Q: As a 19 year old going to land your older brother you

said nothing to him.

A: Not a matter of permission. I tell him I going to take

piece of the land and farm.

W: Did he point out which piece you to take

A: Yes

Q: He point out where you to take

A: Yes

Q: during time you farming the land, when you started

you paid no tax for the land.

A: No’

14

The witness stated that when he decided to pay tax for the land he told Orville who said nothing. He said that he was of the view his father abandoned the land because he had left and gone to England. He said the area Orville pointed out for him to farm is about 74 feet by 180 feet. He had got no legal advice when he went to apply for the title. He insisted he was only trying to ‘secure’ the land when he applied for title. No notice was served on Andy Fray because he lived on the land and they were not neighbours.

15

The witness was then taken though the documentation filed in support of his application for title (see Exhibit 3 pages 20 to 26). The witness stated that he did not know Richard Bonner attorney at law,and that he had asked his mother to sign the Declaration even though he knew she lived in Johns Hall and had left Worcester before he was born. He also had her sign a Declaration that his father had given him the land in 1976 when he knew it was untrue. He also had her sign that he was in ‘sole Possession’ when he knew Miguel and Andy were also in possession. When...

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