Lilian Riley Claimant v Christopher Gerald Registrar of Lands Hon. Attorney General Defendants [ECSC]

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Ianthea Leigertwood-Octave
• Judgment Date: 23 June 2011
• Judgment citation (vLex): [2011] ECSC J0623-1
• Docket Number: CLAIM NO. MNIHCV2004/0009
• Date: 23 June 2011

Between:

Lilian Riley

Claimant

and

Christopher Gerald

Registrar of Lands

Hon. Attorney General

Defendants

[2011] ECSC J0623-1

Before:

Ianthea Leigertwood-Octave High Court Judge

CLAIM NO. MNIHCV2004/0009

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. David Brandt for the Claimant.

Mr. Kharl Markham for the First Defendant.

Ms. Sheree Jemmotte for the Second and Third Defendants.

Introduction

1 The introduction to this claim starts with a reference to someone who is neither a party nor a witness in these proceedings but who is central to the dispute between the parties: Ms. Ruby Weekes ["Ms. Weekes"].

2 Ms. Weekes became the registered proprietor of Block 14/14 Parcel 88 ["the property"] in the St. John's Registration Section on 7 ^th April 1992. On 10 ^th July 2001, the First Defendant, Christopher Gerald ["Mr. Gerald"] lodged a caution ["the Caution"] on the property at the Land Registry.

3 On 5 ^th July 2001, the Claimant Lilian Riley ["Ms. Riley"] sought to have the property registered in her name by lodging various documents at the Land Registry. These documents included a Transfer of Land Document ["the Transfer Document"] dated 5 ^th July 2001, which named Ms. Weekes as the Transferor and Ms. Riley as the Transferee.

4 On 12 ^th February 2002, a Declaration by Ms. Weekes was filed at the Land Registry acknowledging her indebtedness to Mr. Gerald for services provided and expenditure incurred on her behalf.

5 On 10 ^th February 2004, Ms. Riley's solicitors wrote to the Second Defendant, the Registrar of Lands ["the Registrar"], indicating that there was no legal basis for the Caution and requested that the Registrar remove it. The Caution remained and on 15 ^th March 2004, Ms. Riley commenced these proceedings against Mr. Gerald, the Registrar and the Third Defendant, the Hon. Attorney General, who was made a party by virtue of the Crown Proceedings Act. She sought an order that the Registrar remove the Caution. She also alleged that Mr. Gerald had placed structures on the property and sought an order that he remove them.

6 In his defence, Mr. Gerald claimed that he had cared for Ms. Weekes over the years and at some point in time, she had offered to transfer the property to him. On 28 ^th January 2002, she had executed a declaration acknowledging expenditure that he had incurred on her behalf. He admitted constructing part of his business place on the property but alleged that Ms. Weekes had sanctioned it when it was brought to her attention. She had also given him permission to put a structure on a portion of the property.

7 The Registrar and the Hon. Attorney General have denied any liability in this matter, relying on Section 7 of the Registered Land Act 1.

8 At the trial of the claim, there was no evidence presented on behalf of Mr. Gerald, as he had failed to comply with the court's directions for the filing of witness statements.

9 Mr. Markham attacked Ms. Riley's case on two main points. His first challenge was that she had no standing to bring the claim and the second was that as she was not the proprietor of the property, she could not ask the court to make an order for the removal of the Caution.

Did Ms. Riley have the standing to bring this claim?

10 An appropriate starting point for consideration of the locus standi issue is the evidence given by Ms. Riley. Her evidence was that around 5 ^th day of July 2001, Ms. Weekes, who she described in her witness statement as being the " then registered owner", transferred absolute ownership of the property to her as " beneficial owner" by virtue of the Transfer Document, which was exhibited as part of her case.

11 In cross examination, she testified that Ruby Weekes died in the United Kingdom in 2004. She did not know what Letters of Administration were. When she was asked whose name the land was registered in at the date of trial her somewhat off-handish response was " the land is registered or should be registered in my name". Following that answer, Mr. Markham put to Ms. Riley quite emphatically that the land was registered in the name of Ruby Weekes, to which she responded " my contention is it should be registered in my name", and she continued that it was in fact registered in her name.

12 She did not have her Land Certificate in her hand but it should be with her attorney. What she knew was that it was her land and Mr. Gerald was on it. When she was shown the Land Certificate she agreed it showed that the land was registered in Ms. Weekes' name. In re-examination, Mr. Brandt referred Ms. Riley to her answer to Mr. Markham that her lawyer had a Land Certificate for the land. He suggested to her that when she gave that answer she did not what a land certificate was and she agreed, she also agreed with him that she did not have a Land Certificate like the one that was shown to her with Ms. Weekes' name on it.

13 In her pleadings and in her evidence, it was clearly expressed that Ms. Riley's claim was grounded on the premise that she was the beneficial owner of the property. It was elicited from her in cross-examination that Ms. Weekes had died in 2004 and that fact, it was argued, had precluded Ms. Riley's entitlement to bring her action based on a beneficial interest.

14 Mr. Markham contented that it was Ms. Weekes' personal representative and not Ms. Riley who had a cause of action or the requisite locus standi to bring the claim against Mr. Gerald. As the property remained vested in Ms. Weekes' estate the relevant interest fell to her personal representative for the purpose of the administration of her estate. He referred the court to three pieces of legislation in support of that contention:

• 1) All causes of action subsisting against or vested in a deceased survive against or for the benefit of his estate 2;

• 2) Where there is real estate vested in a deceased person, and there is no right of survivorship, even if there is a testamentary disposition, the real estate devolves to and becomes vested in his personal representative 3;

• 3) Where a sole proprietor dies, his personal representative is entitled to be registered by transmission as proprietor in his place, provided he applied to the Registrar in the prescribed form and produced the grant 4.

15 To emphasize the point that Ms. Riley was not entitled to bring this claim, Mr. Markham followed a line of cases starting with the Commissioner of Stamp Duties v Livingston 5 and including Lal v Lal 6, Eastbourne Mutual Building v Hastings Corporation 7 and Re Leigh's Will Trust 8. He relied on these authorities for the proposition that no person who is entitled to the residue has any proprietary interest in any particular asset in a deceased's estate, which would enable them to institute an action such as this. It followed that Ms. Riley's substantive action was against Ms. Weekes' estate to enforce the transfer through the removal of the caution.

16 Mr. Brandt's response was that neither the statutes nor the cases supported Mr. Markham's arguments, having regard to the facts of this case. Not surprisingly, underpinning his arguments was the Transfer Document, which Mr. Markham had argued, gave Ms. Riley nothing more that a future interest in the property.

17 Mr. Brandt noted that " transfer" was defined under the Act as " the passing of land by an act of the parties and not by operation of law and also the instrument by which such passing is effected …" 9, therefore by executing the Transfer Document, Ms. Weekes divested all her interests and rights in

the property and they were irrevocably passed to Ms. Riley. No further act by Ms. Weekes was required and she had acted within Section 83 of the Act which provided that a proprietor by an instrument in the prescribed form may transfer her land to any person with or without consideration. Mr. Markham's argument that on Ms. Weekes' death the property became part of her estate with Ms. Riley only possessing a chose in action was wholly misconceived.

18 There are valid submissions on both sides of the argument but there is at least one aspect that can be disposed of without much difficulty. It begins with Paragraph 5[iv] of Mr. Markham's submissions which states:

'At the time of Ruby Weekes' death in 2004 there was no trust consisting of Ruby Weekes' estate in which the claimant could be said to have had a beneficial interest, since no trust had as yet come into existence to affect the assets of Ruby Weekes.'

19 Mr. Markham was clearly of the opinion that Ms. Weekes' death was a material fact in this case and by so doing he would easily have concluded that the cases and the statutes he relied on would support his arguments that it was Ms. Weekes' personal representative and not Ms. Riley who could bring the claim. They are in fact good authorities for the propositions that a beneficiary's interest in an unadministered estate is no more than a chose in action to ensure the due administration of the estate and that a beneficiary had no specific or defined beneficial interests in the assets.

20 My view is that he came to an erroneous conclusion, which carried through his line of argument. In Livingston 10, Lall 11 and the other authorities, the death of the proprietor was a material and proven fact. In this case, the evidence from Ms. Riley elicited under cross-examination was that Ms. Weekes died "sometime in 2004". These proceedings commenced on 15 ^th March 2004, there is no evidence that on that date Ms. Weekes was deceased so there is therefore no basis for concluding that the issue of Ms. Weekes' estate or the property forming an asset in her estate arises in this case. The death of Ms. Weekes was not a material fact in these proceedings, nothing in this case turned on her death. In fact, her death was not even referred to in Fixed Date Claim, the Statement of Claim or Defence. A perusal of Mr. Gerald's Defence actually suggests that Ms.

Weekes...