Orpha Reid v Dellie May Foster
| Jurisdiction | Jamaica |
| Judge | Wong-Small, J (Ag.) |
| Judgment Date | 03 November 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. 2017HCV03394 |
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[2023] JMSC Civ 212
CLAIM NO. 2017HCV03394
CLAIM NO. 2018HCV02546
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
IN CIVIL DIVISION
Land Law — Recovery of Possession of Property — Whether the Title Holder is the Legal Owner of the Disputed Property — Whether the registered title is extinguished by the operation of the Limitation of Actions Act — Section 3 and 30 of the Limitation of Actions Act — Proprietary Estoppel — Whether the Claimant can rely on proprietary estoppel
Dr. Lloyd Barnett, Mr. Weiden Daley and Ms. Deniece Beaumont Walters instructed by Hart Muirhead Fatta for the Claimant in Claim No. 2017 HCV 03394 and the Defendant in Claim No. 2018 HCV 02546
Ms. Gillian Mullings instructed by Naylor & Mullings for the Defendant and Interested Party in Claim No. 2017 HCV 03394 and the Claimants in Claim No. 2018 HCV 02546
The consolidated claims in this matter concern the possession and ownership of all that parcel of land known as Number Ten Elgin Road situate at Brentford Town in the parish of Saint Andrew previously registered at Volume 969 Folio 364 of the Register Book of Titles and currently registered at Volume 1503 Folio 565 of the Register Book of Titles (hereinafter the disputed property).
At all material times, the registered proprietor of the disputed property was Ms. Lucina Melvina McIntosh. Subsequent to her death on the 12 th day of March, 1995, a Grant of Probate was obtained in her estate by Mr. Keith Jarrett, the Executor of her Last Will and Testament, on the 15 th day of November, 2010. Thereafter, Mr. Keith Jarrett was registered on transmission on the title on the 1 st day of November, 2016.
Pursuant to an Agreement for Sale dated August 22, 2011, Mr. Keith Jarrett entered into an agreement with Mr. Vincent Anderson for the sale of the disputed property. The purchase price was Four Million Dollars ($4,000,000.00) and a deposit of Four Hundred Thousand Dollars ($400,000.00) was paid over to Mr. Jarrett. The said Agreement for Sale provided for vacant possession of the disputed property and consequently, to-date, the sale remains incomplete.
By way of a Fixed Date Claim Form filed on October 24, 2017 and an Amended Fixed Date Claim Form filed on October 27, 2017, Ms. Orpha Reid commenced Claim No. 2017 HCV 03394 in which she primarily seeks a declaration that she is entitled to possession and ownership of the disputed property as well as orders for the disputed property to be transferred to her. Ms. Reid claimed that she entered into possession of the disputed property in 1996; and that she has been in continuous, peaceful and undisturbed possession of the entire property for over twenty years.
In November 2011, Mr. Keith Jarrett commenced a claim at the Parish Court against Ms. Orpha Reid to recover possession of the part of the disputed property occupied by her (Plaint No. 5903 of 2011). On May 1, 2018, Her Honour Ms. Stephany Orr (as she then was), granted an application for the said matter to be transferred to the Supreme Court (Claim No. 2018 HCV 02546). By way of Particulars of Claim filed January 7, 2018 and Amended Particulars of Claim filed on November 12, 2019, Mr. Jarrett and the Interested Party seek to recover possession of the said property.
On July 28, 2022, Ms. Dellie May Foster filed a Notice of Application for Court Orders in which she sought orders for Mr. Jarrett to be relieved of his obligations in these consolidated claims as a result of his mental status and that she be appointed as a substitute for Mr. Jarrett to handle the consolidated claims on the behalf of the said Estate. These orders were subsequently granted.
To effectively deal with the issues that arise in this matter, I have thought it prudent to outline the evidence put forward by the respective parties in support of their claims.
Ms. Orpha Reid's case was supported by her evidence and that of her two witnesses, Mr. Barrington Duncan and Mr. Derrick Crooks. Her evidence was that she peacefully entered into possession of the disputed property in 1996 and lived there with her sister until her death in 2013. Since that time, she had exclusive, sole, peaceful and continuous possession of the disputed property. She also stated that in that period she gave birth to three (3) of her four (4) children.
She further stated that when she entered into possession, there were two (2) concrete houses and one (1) wooden house on the disputed property with sixteen (16) bedrooms in total and that while living there, she treated it as her own and exercised various acts of ownership over it. These included constructing a concrete wall and a gate along the property's Elgin Road boundary; carrying out repairs and works of improvement to the buildings on the property; installing four (4) private toilets; installing wastewater pipes; installing grills on most of the room windows and the verandas; installing new windows; and paving the yard. In so doing, she spent in excess of $1,300,000.00. She also stated that she has personally paid all the property taxes for the property from 2004 to 2022.
In cross examination Ms. Reid, she gave more details of the improvements and repairs she did to the disputed property and when they were done. She asserted that she these from she began residing there in 1996. She installed toilets and waste water pipes in 2000. Regarding the construction of the wall, Ms. Reid testified that she began the construction in or about 1999 and it was completed in 2000.
She also gave evidence that glass panes were installed in the windows in the front concrete house and new windows were installed in the second concrete house. Installation of the grills began in 2008 and those installations have been completed. Paving of the yard began in 2022. As it relates to her renting of the premises, Ms. Reid indicated that between 1996 to 1997, she rented out the bedrooms on the premises that she did not use.
She denied suggestions that she first came to the disputed property in 2005 as the common law spouse of Alexander Raby to whom a part of the property was rented. She stated that she was involved in a common law relationship with Mr. Alexander Raby between 2001 to 2006, however, during that time, she lived at the disputed property and he lived at 11 Penrith Road in the parish of Kingston.
Mr. Barrington Duncan gave evidence that he became one of Ms. Reid's tenants at the disputed property in 2008. He knew that Ms. Reid had resided on the disputed property since the late 1990s and since that time to present, he had observed her to be in peaceful, continuous, sole and exclusive possession and control of the property. He also stated that while he was a tenant on the property, he was aware that all the tenants residing there paid rent and a portion of the water bill to Ms. Reid.
Mr. Duncan also averred that he had observed Ms. Reid carrying out acts of ownership and/or possession on the disputed property including constructing a concrete wall and a gate along the Elgin Road boundary of the property; carrying out repairs and works of improvement to the buildings on the property such as installing waste water pipes, grilling most of the room windows and the two verandas, installing new windows, paving the yard, renting rooms to tenants, repairing a leak in the roof of his room and paying the water bills.
The evidence of Mr. Derrick Crooks was that he lived at 14 Elgin Road in the parish of St. Andrew from 1999 to 2013 and that he knew Ms. Reid who lived at 10 Elgin Road which is two (2) lots away from his home. In that period, he also indicated that he had observed Ms. Reid to be in peaceful, continuous, sole and exclusive possession and control of the disputed property. He also observed her exercising acts of ownership over the property inclusive of constructing a concrete wall and a gate along the Elgin Road boundary, carrying out repairs and improvements to the buildings on the property by installing waste water pipes, grilling most of the room windows and the two verandas and renting rooms to tenants.
Ms. Dellie May Foster was the primary witness on her case and her evidence was that she is a beneficiary of the Estate of Lucina Melvina McIntosh. In the Last Will and Testament of Lucina Melvina McIntosh, she is referred to as “Delsie Foster” and that before Ms. McIntosh died, the disputed property was devised to herself and other persons.
Ms. Foster stated that Ms. McIntosh lived on the property until 1988 when she became ill. Thereafter in 1989, she relocated Ms. McIntosh to her place of residence. She began managing the property in 1988 when the Deceased became ill and she had been managing it until 2008. From 1994 to 2011, she managed the property and consulted with the Executor of the Estate, Mr. Keith Jarrett. She stated that she and her brother, Mr. Headley Foster, rented the property to several tenants.
Her evidence was that Ms. Reid moved to the property in 2005 and lived there until 2006. She further stated that in 2006, Ms. Reid and another tenant, Lorna, assaulted her because she demanded rent from them. Thereafter, Ms. Reid left the property, but she returned in 2007 without Ms. Foster's permission.
Ms. Foster further stated that in 2008 Ms. Reid began unsettling the other tenants on the premises as she was issuing threats, using violence against them and used force to take control of the property. She also alleged that persons...
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