Sonia Edwards and Others v Stephanie Powell

• Jurisdiction: Jamaica
• Judge: Brooks JA,Sinclair-Haynes JA,P Williams JA
• Judgment Date: 10 June 2016
• Neutral Citation: JM 2016 CA 59
• Docket Number: CIVIL APPEAL NO 17/2014
• Court: Court of Appeal (Jamaica)
• Date: 10 June 2016

[2016] JMCA Civ 33

JAMAICA

IN THE COURT OF APPEAL

RESIDENT MAGISTRATE

Before:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Miss Justice P Williams JA(AG)

CIVIL APPEAL NO 17/2014

Between:

Sonia Edwards

1st Apellant

Carol Osbourne

2nd Appellant

Derrick Beckford

3rd Appellant

Neville Richards

4th Appellant

and

Stephanie Powell

Respondent

Norman Hill QC and Raymond Samuels instructed by Samuels and Samuels for the appellant

William McCalla instructed by Robinson Phillips and Whitehorne for the respondent

Brooks JA

1 I have read, in draft, the judgment of my sister Sinclair-Haynes JA. I agree with her reasoning and conclusion and have nothing further to add.

Sinclair-Haynes JA

2 This is an appeal by Sonia Edwards, Carolyn Osbourne (nee Beckford) (deceased), Derrick Beckford and Neville Richards, the appellants from the decision of Her Honour Mrs Andrea Pettigrew-Collins, Senior Resident Magistrate, in which she ordered the appellants to deliver up possession of land which was owned by Joslyn Spencer (deceased) and her order of costs in favour of Ms Stephanie Powell, the respondent.

Background

3 On 6 November 2009, the respondent instituted proceedings against the appellants in the Port Maria Resident Magistrate's Court for recovery of possession of land against all the appellants except Mr Beckford against whom recovery of possession of a dwelling house was sought. The land, the subject of her claims, was land which was registered in the name of Mr Joslyn Spence. The land on which the dwelling house occupied by Mr Beckford stood, was also registered in the name of Mr Spencer.

4 Mr Spencer died intestate on 20 December 1995. At the time of his death, his only issue was Mabel Spencer who will be referred to as ‘Mabel’ for convenience, no disrespect intended. Mabel obtained letters of administration on 5 June 1998 of the entire residual estate of her father's estate which was land registered at Volume 1202 Folio 875 of the Register Book of Titles. She transitioned from this life on 5 February 1999, leaving children, Leroy and Eric Edwards and Anthony and Angella Sullivan. She also left a will dated 10 December 1998 in which Messrs Joseph Francis and Leonard Turner were named executors. Her will was probated on 22 April 2005.

5 The respondent had however obtained an order of the Supreme Court on 9 January 2001 declaring her Mr Spencer's spouse. On 12 January 2009 she also obtained a grant of letters of administration de bonis non in Mr Spencer's estate. Armed with her letters of administration, she instituted these proceedings against the appellants. The plaints against the appellants were consolidated.

The evidence before the learned magistrate

The respondent's evidence

6 The respondent's evidence was that she resided with the deceased as his spouse and was declared to be so by the court by virtue of the Intestate and Property Charges Act. Her evidence was that whilst she resided with the deceased, Ms Edwards was a tenant who resided on the land. Mr Beckford and Ms Osbourne also resided on the land with their mother who was also a tenant but had vacated the land five years before the evidence was adduced before the learned magistrate. Mr Richards, she asserted, constructed a car wash on the property after Mr Spencer died and three years prior to her testimony.

7 It was her evidence that after the passing of Mr Spencer, she removed to another house on the property. Mr Spencer's grandson Anthony Sullivan was put in possession of the house which Mr Beckford occupied without paying rent.

8 She was also was unaware that the appellants had purchased the portions of land which they occupied from Mabel's estate. She said the property had not been distributed to the beneficiaries.

The Appellants' case

Mrs Carolyn Osborne's evidence

9 It was Mrs Osbourne's evidence that she purchased three quarters of an acre of land from Mr Joseph Francis for $700,000.00. She had made down payments of $70,000.00 and $35,000.00 and other payments. She made further payments totalling $400,000.00. She was unable to recall the date she purchased the land. It however was her evidence that it was ‘6 years or so or 7 years’. It was also her evidence that Mr Francis was her stepfather and Derrick Beckford, who occupied ‘Mabel's house’ before Mr Spencer's death, is her brother.

Ms Sonia Edwards' evidence

10 Ms Edwards' evidence was that ‘some twenty odd years’ ago she was permitted to occupy three-quarters of an acre of land by Mr Spencer on a ‘lease and sale basis’. After the expiration of that lease, she entered into another lease agreement with his daughter Mabel between the years 1996 and 1997.

11 After Mabel's death, her executors Mr Francis and Mr Turner, showed Ms Edwards a grant of probate and offered to sell her the land. An agreement for sale was prepared at a lawyer's office on Duke Street. She deposited the sum of $100,000.00 towards the purchase of the land with the executors in the presence of her lawyer and Mabel's children, Angella and Leroy Edwards. Further payments were made to Mable's son, Leroy Edwards. She commenced constructing a house on the property after the death of Mr Francis.

Mr Neville Richards' evidence

12 Mr Richards testified that in 2009 he entered into a lease agreement with Mr Leroy Edwards and Mr Edward's siblings to erect a car wash on the property. That agreement was to expire in 2014. Mr Edwards should have taken the lease to his lawyer to be signed by his (Mr Edwards') siblings.

13 Mr Edwards also showed him the probate document in Mabel's estate and informed him that Mabel was his mother and Joslyn Spencer was his grandfather. It was also his evidence that the names Joseph Francis and Leonard Turner were stated on the document as executors.

Mr Ronald Beckford (also called Derrick)

14 Mr Ronald Beckford, the brother of Ms Carolyn Osbourne, received a letter to vacate the premises he occupied. His evidence was that he occupied Mabel's house. He began living on the property in 2003 with his mother who migrated and left him there. He initially paid rent to Mr Francis who was his mother's husband. Mr Francis, he said, instructed him to pay rent to Leroy, Mabel's son. After Mr Francis' death, in accordance with Mr Francis prior instructions, he continued paying the rent to Leroy.

The learned magistrate's decision

15 The learned magistrate rejected Ms Osbourne's evidence that, in furtherance of a lease and sale agreement, on various occasions she paid amounts totalling $400,000.00 for the following reasons:

‘She did not produce a single receipt as proof of the fact of making any payments. Even more surprising is her evidence that documents evidencing the transactions were prepared by the very Attorney At Law who had conduct of this matter, yet no such document was produced in evidence. It goes without saying that counsel would have been aware of the extreme importance of producing the documents yet the defendant Osbourne was heard to say she was not aware of the need to produce the documents which she said were in the possession of her attorney at law.’

16 She also rejected Ms Edwards' evidence that she purchased land or that she had any enforceable agreement to purchase the portion of land which she claimed. The learned magistrate said:

‘My assessment of her evidence is much the same as it is in the case of Miss Osbourne and the reasons are the same.

Like Miss Osbourne, her evidence is that she was represented by Mr. Samuels in her capacity as purchaser, yet she produced no documentary proof of the transactions.

Her account is some what more vague since she was not even able to say how much money she has paid to date towards the purchase of the land and in fact said there was no purchase price agreed upon and that whatever price the executors would have asked she would have paid.’

17 Likewise she rejected Mr Richards' evidence that there was a lease agreement which would expire in 2014 between Leroy Edwards and him. She gave these reasons for having done so.

‘He produced no agreement in writing. Even assuming that there was some oral agreement, he said that agreement was between himself and Leroy Edwards, the son of Mabel Spencer. I am of the view that any such lease entered into between those two persons would be valid only as between them. Mr. Richards in my view did not act with due diligence. He did not enter into an agreement with someone who was authorized to lease the land in question. Leroy Edwards was not entitled to do so. I take the view there is no valid lease as between him and Miss Powell. He said the agreement was entered into sometime in 2009. He didn't say when in 2009. Of course both executors had died before the beginning of 2009. If it was after the 12th January 2009, then Miss Powell would have been the only person entitled to enter into any agreement with him regarding the land.’

18 The learned magistrate rejected the submission on behalf of the appellants that there remained no portion of the estate of Mr Spencer which was unadministered at the date the respondent obtained her grant of letters of administration de bonis non . She also rejected the submission that Mr Spencer's entire estate vested automatically in Mabel upon the grant of letters of administration to her on 5 June 1998. The learned magistrate held that in order to vest real estate, a personal representative must execute an assent to device. Having so found, she concluded thus:

‘There is no evidence that this essential step had been taken as at the time of the death of Mabel on the 5 ^th February 1999, on [sic] fact, the evidence is to the contrary. It is clear to me that there was no administration of that portion of Joslyn Spencer's estate comprising land registered at Vol.1202 Folio 875 of the Register Book of Titles during the lifetime...