Joseph Fenton v Audrey Frederick

JudgeRamdhani JA
Judgment Date26 July 2021
Judgment citation (vLex)[2021] ECSC J0726-3
CourtCourt of Appeal (Montserrat)
Docket NumberMNIHCVAP2020/0013
[2021] ECSC J0726-3




The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Darshan Ramdhani Justice of Appeal [Ag.]


Joseph Fenton
Audrey Frederick

Mr. Jean Kelsick for the Appellant

No appearance for the Respondent

Civil appeal — Pleadings — Whether the issue of trust was properly raised on the pleadings — Circumstances in which Court may raise and determine issue when not raised on pleadings — Whether evidence on oath in a civil trial between private parties, could create a legitimate expectation — Propriety estoppel — Whether there was any basis to ground a finding of propriety estoppel


Ramdhani JA [AG.]: This appeal was heard on 26 th July 2021 and by a unanimous decision of the Court it was allowed, the judgment of the learned High Court judge set aside, and judgment entered for the appellant. These are the reasons for that judgment.

The claim before the High Court

The underlying proceedings began in 2012, the respondent filed a claim against her stepbrother, the appellant and was essentially one for the exclusive possession of the downstairs apartment of a property recorded on the land register as Parcel 21 Block 13/18 of the St. Peters Registration Section situate at Baker Hill, Montserrat. The respondent also sought an injunction restraining the appellant from preventing the respondent from having ‘full access’ to this downstairs apartment, as well as damages for loss of use, monies expended to repair the upstairs of the home and money paid by the respondent to clear a mortgage on the said property.


The appellant's pleaded case in response was that he was the sole registered proprietor. He counterclaimed for an injunction restraining the respondent from entering the property.


It is necessary to put this claim in context to understand how the High Court judge fell into error.


The context was aptly summarised by Mr. Kelsick who appeared for the appellant throughout these proceedings. It will be adopted by this Court.


The parties are siblings. Their mother Jane Fenton died on 19 th March 2012. While the parties are both Montserratians, the appellant resides permanently in New York, USA, and the respondent in Boston, USA. On 9 th August 1989, title to Parcel 21, Block 13/18, St. Peters Registration Section (the “Property”) was registered in the names of the appellant and the late Jane Fenton as joint proprietors. On 16 th June 1993, a charge signed by both the appellant and the late Jane Fenton was registered on the title to the Property to secure a loan from the Montserrat Building Society Ltd. The charge was subsequently removed from the title after the loan was paid off.


The respondent claimed that on 3 rd September 2009, Jane Fenton signed a memorandum purporting to give the respondent an interest in the Property. The respondent also claimed that she subsequently built the downstairs apartment at the Property for an undisclosed sum. Per his evidence, the appellant disputes this.


On 6 th January, Jane Fenton made a will (the “Will”) purporting to convey ownership of the upstairs apartment on the Property to the appellant and various siblings of his and the downstairs apartment to the respondent. Jane Fenton died in March 2012 and the Will was probated on 11 th October 2012. On 2 nd October 2012, Jane Fenton's name was deleted from the title to the Property, resulting in the appellant becoming the sole owner thereof. By letter dated 19 th November 2012, the appellant's then attorney-at-law, Mr. Kenneth Allen QC, informed the respondent that any further entry by her onto the Property would be treated as a trespass. There then ensued an unfruitful exchange of letters between Mr. Allen and Mr. David Brandt, culminating in the issuance of the said claim form. The appellant subsequently issued a counterclaim against the respondent.


In her claim, the respondent made no reference to the fact that the appellant was registered as the proprietor of the Property but asserted that in 2009, her mother gave her permission to construct an apartment ‘downstairs of that house’ and she paid a construction company, one Ryan Investment Limited, to build the apartment and on completion she furnished it. The company rented out the apartment from time to time on her behalf and paid the rent into her account. On seeing the ‘defence and counterclaim’ which asserted that the appellant was the sole registered proprietor, the respondent pleaded in answer that the appellant held the property in trust for all the siblings.


This was the state of the pleadings when the parties got to trial. There were two trials of the claim. The first one proceeded ex parte, in the absence of the appellant. By consent, that judgment was later set aside by this Court, and the matter was resent to the High Court for a full inter partes hearing. It is that hearing which has given rise to this appeal.


At that trial, both parties gave evidence and brought witnesses. The long and short of the evidence was that the respondent continued to maintain her claim that she was entitled to exclusive possession of the downstairs apartment. Her evidence at trial was that when her mother was 89 years old, the appellant brought her to the respondent's home and left her on the doorstep, abandoning her. She took care of her mother and the following year she and her mother journeyed to Montserrat and her mother made a will in which the downstairs apartment was devised to her. At trial, the respondent insisted that the property was to be held on trust for all the children of the deceased mother.


The appellant's evidence was that the respondent had no right to claim exclusive possession of the downstairs apartment and that he was the sole registered proprietor of the property. He resisted suggestions that the mother had been abandoned. The transcripts reveal the following questions by the court and answers given by the appellant:

“The Court: It wasn't contemplated that you would own the house?

Answer (Joseph Fenton): No.

The Court: And it wasn't contemplated that you would inherit the house for yourself?

Answer: No it was not.

“The Court: What was supposed to happen to your mother's house when she died?

Answer (Joseph Fenton): The property was to go towards her children.

The Court: And you think it should he shared part of the upstairs/downstairs by all four of you?

Answer (Joseph Fenton): Absolutely.” 1


This evidence led the court to press the parties to mediate the matter with a view of resolving it. A brief adjournment was granted at the end of the evidence of the appellant, but on resumption there was no resolution and the trial resumed with the appellant's witnesses testifying. Mabel Armstrong, another sibling, gave evidence on behalf of the appellant and she was asked by the court:

“Do you think you could ever get to a stage where being siblings you and Audrey can somehow put the past behind you and share that house both upstairs and downstairs you and Audrey and Joseph and John?

Answer (Mabel Armstrong): The whole purpose of our mother constructing that home was for the enjoyment of all her children not one more than the other. It was to share the house equally”. 2


At the end of the trial, the court again sought to press the parties to seek to resolve the matter and expressed preliminary views that it seemed that the parties should agree to share the property with all the siblings in equal shares. The matter was adjourned for decision, the court expressing the view that the parties might earlier reach some settlement.


That was not to be. During the break, the appellant's attorney filed written submissions contending that the claim ought to be dismissed as disclosing no cause of action.


On resumption, the court again expressed its own views on the matter and pressed the parties to seek to resolve it. At one stage, the learned judge noted: ‘I am very unhappy leaving this house solely in the hands of Joseph given what he said. It doesn't sit right with what is the morality of family but the difficulty is that moralizing is not the job of the Judge.’ 3


A written judgment was delivered on 11 th May 2019 in which the learned High Court judge made a number of findings. It is useful to set out the salient parts of his judgment. Making reference to the evidence given by the appellant at the trial, he held that:

“9 …By his words on oath he has created a legitimate expectation in the mind of Audrey the claimant, and the others, she would at least have a joint share in the property. Moreover he spoke directly to the court. There is something offensive in seeking to undo his sworn words, such that he should be estopped. By his words on oath he gave up his claim to exclusive ownership. Borrowing loosely from the doctrine of proprietary estoppel, in my judgment Joseph should be fixed to his evidence, such that its consequence is I order the Land Registry to record plot 13/18/21 jointly owned by the four siblings.

10 If I am wrong to do so, I declare at the very least Joseph, in light of what he said in court, holds legal title for the benefit equally in equity of the four siblings, such that his mother's home is not his to sell or control wholly for his own financial gain.

11 There shall be no order as to costs. I had considered awarding some costs to Joseph, but will not, in light of his volte face, leading in my mind to unwarranted further litigation and hearings.”

The Issues on Appeal

The appellant in his notice of appeal raised a number of grounds but this appeal was determined on three issues. These are as follows:

  • (1) First, whether the issue of trust was properly raised on the pleadings so as to ground any of the orders granted by...

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