Winnifred Fullwood v Paulette Curchar

• Jurisdiction: Jamaica
• Judge: Panton P,Brooks JA,McDonald-Bishop JA
• Judgment Date: 19 June 2015
• Neutral Citation: JM 2015 CA 65,[2015] JMCA Civ 37
• Docket Number: CIVIL APPEAL NO 89/2014
• Court: Court of Appeal (Jamaica)
• Date: 19 June 2015

[2015] JMCA Civ 37

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Brooks JA

The Hon Mrs Justice McDonald-Bishop JA (Ag)

CIVIL APPEAL NO 89/2014

Between

Winnifred Fullwood

Appellant

and

Paulette Curchar

Respondent

Leroy Equiano for the appellant

Ms Marjorie Shaw and Miss Terry-Joy Stephenson instructed by Brown and Shaw for the respondent

ADVERSE POSSESSION - Property - Right of co-owner of property to obtain an Order for recovery of possession held exclusively by a co-owner and a third party for 24 years continuously - Limitation of Actions Act, s. 3 - Whether the claimant was dispossessed by the defendant after not having had contact or exercised any rights of ownership over the property for in excess of 12 years

Panton P

1 I have read, in draft, the judgment of McDonald-Bishop JA (Ag). I agree with her reasoning and conclusion and have nothing to add.

Brooks JA

2 I too have had the opportunity of reading, in draft, the judgment of my learned sister McDonald-Bishop JA (Ag). I agree with her reasoning and conclusion and have nothing to add.

McDonald-Bishop JA (AG)

Introduction

3 This appeal essentially raises the question as to the extinction and acquisition of title by operation of the Limitation of Actions Act (“the Act” or the “statute of limitations”). In particular, it concerns the right of a co-owner of registered property to obtain an order for recovery of possession of the property that had been in the exclusive possession of a co-owner and a third party for a continuous period of 24 years before the commencement of court proceedings to recover possession.

4 On 29 May 2013, Mrs Paulette Curchar, the respondent, commenced proceedings in the Supreme Court against Miss Winnifred Fullwood, the appellant, for, inter alia , recovery of possession of residential property situated at 1 Saint Mary Avenue, Independence City in the parish of Saint Catherine and registered at Volume 1062 Folio 35 of the Register Book of Titles (“the property”). She also sought an order for removal of a caveat lodged by Miss Fullwood against the property.

5 On 2 October 2014, Lindo J (Ag), after hearing the evidence of the parties, and the submissions of counsel acting on their behalf, granted the order for recovery of possession of the property and removal of the caveat as claimed by Mrs Curchar. Miss Fullwood is aggrieved by the order and, consequently, has filed this appeal.

The background

6 The parties were their own historians and the evidence adduced by them before the learned trial judge has revealed some material disputed facts as well as some areas of common ground between them. An attempt will be made to broadly summarize both the undisputed as well as the disputed facts in an effort to provide an insight into the background to the case that was before Lindo J (Ag) and which led to the decision appealed against.

7 Mr Huntley Curchar and Mrs Curchar were married in 1968 and the union has produced three children who are now adults. One of their children is a daughter, Andrea Curchar, whose name features prominently in the proceedings although she is not a deponent in the case. In 1973, they acquired the property as joint tenants. In 1976, they obtained a mortgage from the Victoria Mutual Building Society to improve the property.

8 Mr and Mrs Curchar along with their children resided on the property until Mrs Curchar and the children migrated to the United States of America (“the USA”) at some point between the early and mid-1980s. Mr and Mrs Curchar later separated and were eventually divorced on the petition of Mrs Curchar. Mrs Curchar later remarried. After migrating to the United States, she never returned to the premises for any purpose whatsoever although she visited Jamaica and would pass the premises from time to time. She received no rental or any other income from the property and she had no belongings there.

9 Miss Fullwood started living in the premises in 1985 with Mr Curchar at his invitation. She lived with him, cared for him and assisted in the maintenance of the property. In September 2009, Mr Curchar died; he left no will. Miss Fullwood continued to live on the property after his death.

10 On 25 May 2010, Miss Fullwood was served with a notice to quit and in or around January 2011, she was summoned to appear before the Saint Catherine Resident Magistrate's Court to respond to a plaint brought against her by Mrs Curchar for recovery of possession. The outcome of those proceedings is not disclosed on the evidence but it could be assumed that no order was made against Miss Fullwood given the commencement of subsequent proceedings in the Supreme Court.

11 In or around August 2012, Miss Fullwood lodged a caveat preventing dealing in respect of the property. She asserted in the caveat an interest in the property pursuant to the Property (Rights of Spouses) Act (“PROSA”) on the basis that it is the family home and that she was the common law spouse of Mr Curchar, deceased. Up to that time, she had brought no formal claim to be declared the spouse of Mr Curchar for purposes of PROSA or any other relevant enactment. Miss Fullwood refused to deliver up possession to Mrs Curchar, which led to the filing of the claim in the Supreme Court.

The dispute before the learned trial judge

Mrs Curchar's case

12 In her claim filed in the Supreme Court and in her evidence proffered in support of it, Mrs Curchar, essentially, contended as follows. Upon the death of Mr Curchar, she is entitled to possession of the property because she had not abandoned or relinquished her interest in it since acquiring it jointly with Mr Curchar. She asserted that Miss Fullwood, in her application for the caveat had wrongfully and knowingly misrepresented to the Registrar of Titles that Mr Curchar was the sole registered proprietor of the property.

13 She relied on documentary evidence to bolster her evidence that although she had left the property in 1985 and had later divorced Mr Curchar, they had remained civil to each other. She would send monies for him to do whatever he wanted with it as the “man of the house” and to meet the mortgage repayments. She had discharged the mortgage for the property in 2010. She also sent barrels to him and assisted in defraying the expenses for his funeral.

She denied Miss Fullwood's claim to being the common law spouse of Mr Curchar although she does not know if they were romantically involved. She contended that Miss Fullwood was a tenant of the property with her consent and a paid caregiver to Mr Curchar until his death. Miss Fullwood has no interest whatsoever in the property.

Miss Fullwood's case

15 Miss Fullwood, in response to the claim, relied on the Limitations of Actions Act by way of her defence. The gist of her case is captured and outlined as follows. Mrs Curchar had left the property for over 24 years up to the time of Mr Curchar's death. She and Mr Curchar had occupied the property as man and wife for all that time to the exclusion of Mrs Curchar. They shared the property with two children they had adopted, one of whom is a child with special needs.

16 Also relying on numerous documents to advance her case, Miss Fullwood contended that Mrs Curchar, in fact, had left the property for the USA from 1982 and has never returned or made any contribution to anything pertaining to the property or Mr Curchar. She relied on a letter purportedly written by Mr Curchar and addressed to the US embassy in 1984 in which Mr Curchar stated that Mrs Curchar had left with the children from 1982 and that he did not know her whereabouts and that she had taken his passport and he was seeking assistance from the embassy to locate her. Mrs Curchar had accepted that the letter was in the handwriting of Mr Curchar. She, however, maintained that she left in 1985.

17 Miss Fullwood further contended that Mrs Curchar had abandoned the property when she failed to return there and to assist with mortgage repayments, property taxes and the general preservation of the property. She claimed that over the years when Mr Curchar was unable to pay the mortgage, property taxes and water bills, she had to pay them or give him loans to do so without any assistance from Mrs Curchar. She exhibited receipts purportedly signed by Mr Curchar evidencing her claim. Those receipts have remained unchallenged.

18 She also deposed that when Mr Curchar became ill in 2004, she had to take care of all his medical and living expenses. She would only receive money from Andrea Curchar (the daughter) for Mr Curchar after he became ill. She paid the majority of the funeral expenses and she caused the body to be buried as evidenced in the death certificate that was exhibited.

19 Miss Fullwood contended that she has acquired a beneficial interest in the property by virtue of her position as Mr Curchar's common law spouse and it was Mr Curchar's desire that she should benefit from the property. She relied on a document headed “Declaration of Assets” purportedly written and signed by Mr Curchar before a Justice of the Peace in seeking to substantiate the evidence of her contribution to the property and the welfare of Mr Curchar and the desire of Mr Curchar that she should benefit from the property. She also exhibited a form purportedly signed by Mr Curchar and witnessed by a Justice of the Peace in 2009 for the purposes of his pension payments in which he described her as his common law spouse and assigned her to be his agent.

20 She maintained that she and Mr Curchar had together enjoyed exclusive occupation and possession of the property free from molestation in any form from Mrs Curchar or anyone else acting on her behalf or claiming through her for 24 years before the death of Mr Curchar. Mrs Curchar therefore, has no valid title to claim recovery of possession as her...