Donald Locker Claimant v [1] Charles Weekes [2] William Weekes [3] Joseph Weekes [4] Registrar of Lands [5] Hon. Attorney General Defendants [ECSC]
| Jurisdiction | Montserrat |
| Judge | Redhead, J. (Ag) |
| Judgment Date | 30 January 2014 |
| Judgment citation (vLex) | [2014] ECSC J0130-2 |
| Court | High Court (Montserrat) |
| Docket Number | CLAIM NO: MNIHCV2008/0015 |
| Date | 30 January 2014 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
A.D 2014
CLAIM NO: MNIHCV2008/0015
The Claimant Donald Locker in this action filed a Fixed Date Claim against the Defendants seeking the following Orders:
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i. An Order that the proprietorship in the register of parcel 14 Block 14/97 be rectified by removing the names of the 1st, 2nd and 3rd Defendants there-from and by replacing the Claimant as Sole Proprietor on the ground that the registration was obtained by fraud or mistake.
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ii. That the cost of application may be met by the 1st, 2nd and 3rd Defendants.
The Claimant Donald Locker left Montserrat for England in or about the year 1959. He was then about 19 years old. He left England and went to New York. It appears that the Claimant first returned for a brief period, in or about 1974 to Montserrat. The Claimant by my calculation would by then have been away from Montserrat for at least 15 years.
The Claimant in his statement of claim alleges that at all times he, through his predecessors in title owned the Land in question absolutely, be peaceful open and uninterrupted possession without permission of any person lawfully entitled to such possession for over 50 years.
The Claimant also claims that after the death of his mother, he continued to occupy the house structure there until he migrated abroad.
In my opinion, this allegation cannot be maintained for the reason that by the evidence he left his mother in the house and migrated to England. Moreover the Claimant's witness Sylvia Warner in cross examination said Donald Locker left Montserrat in 1959. Since 1959 Donald Locker has not occupied the house.
In fact, the Claimant himself says in cross examination"In 1959 my mother was the owner of the land; I have never lived on the land since my mother died about a year ago."
Donald Locker also says that he gave permission to Ellen to work the land in 1974. There was an old house on the land. There is every indication that in 1974 when the Claimant returned to Montserrat his mother was no longer living on the land but had moved to New York.
The Claimant is laying claim to Parcel 97 Block 14/4 through his predecessor in title who owned the land absolutely through uninterrupted possession for over 50 years.
In his Statement of Claim he alleges that in or about the year 1974 Ellen Weekes, the daughter of Mary Weekes, the mother of 1st, 2nd and 3rd Defendants through whom they claim, sought permission from the Claimant to cultivate Block 14/4 Parcel 97. The Claimant gave permission to the said Ellen Weekes to occupy the land and cultivate it. There-upon the said Ellen Weekes took possession of the said land and cultivated it for many years until her death.
The Claimant also alleges that the 1st, 2nd and 3rd Defendants and their predecessors occupied the land with the permission of the Claimant.
The 1st and 2nd Defendants in their defence deny that the Claimant through his predecessors in title owned the land absolutely or at all but allege that the land was owned by Charles Weekes who gave each of his children a parcel of land to include James Daniel Weekes.
James Daniel Weekes had a child by the name of Diana Weekes who migrated to United States of America in the 1950's where she later died. She left the property to Mary Jane Weekes and Ellen Weekes.
The Defendants allege that Mary Jane Weekes lived on the said property and the first and second Defendants were all born on the said lands.
The said Ellen Weekes was the mother of the first and second Defendants. The second Defendant in his defence states that in or around April 1998 the lands were duly advertised and the Claimant through his Solicitor wrote to the second Defendant's Solicitor but never pursued the matter.
The Claimant said in cross examination"I was last in Montserrat years ago, I am not sure of the year it was in the 70's. In the 70's I made effort to claim the land."
Later in cross examination he said"I don't remember making a claim to the land in 2008. I remember I went to a Lawyer I don't remember his name. The Lawyer I went to was applying for some job, he dropped my case."
This evidence in my opinion supports the second Defendant's assertion that the Claimant through his Solicitor wrote his Lawyer a letter but never pursued the matter.
I ask the question: Why would the Claimant make an attempt to claim the property if he knows that he owned it?
The Claimant asserts that he was given the property by his mother; when he was asked by the Court when he was given this property? His response was"when he was 4 or 5 years old, this land was handed over to him."
In my judgment there are two fundamental legal problems here as the Claimant's claim to ownership of the land is concerned.
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i. An infant cannot legally own land. If an infant is to have the benefit of the ownership of land, the land must be transferred to trustees who would hold the land for the benefit of the infant until he attains the age of 21 years.
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ii. Title to land cannot pass to anyone by word of mouth.
The Claimant alleges that when he visited Montserrat in 1974 he gave permission to Ellen to work the land.
The Claimant had no title to the land. He did not own the land, therefore he cannot legitimately give anyone permission to occupy the land. His so-called permission was of no effect, in Law null and void.
Mr. David Brandt Learned Counsel for the Claimant in his written submissions contends that in or about the year 1974 Ellen Weekes the daughter of Mary Weekes who is the mother of the 1st, 2nd and 3rd Defendants and through whom they claim, sought permission from the Claimant to cultivate Block 14/4 Parcel 97 and the Claimant gave permission to Ellen Weekes to occupy the land and cultivate it. There upon the said Ellen Weekes took possession of the said land and cultivated it for many years until her death.
Mr. Brandt in his statement contends that the said lands were occupied by 1st, 2nd and 3rd Defendants and their predecessors with the permission of the Claimant.
The second Defendant in his defence alleges that Mary Jane Weekes lived on the land and the 1st, 2nd and 3rd Defendants were all born on the land. The second Defendant in particular says that he had been in occupation of the lands for upwards of twelve (12) years.
There can be no doubt therefore that the Defendants have been in occupation and possession of the lands in question. The Claimant...
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