Wade v Weekes

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Byron, J.
• Judgment Date: 22 March 1983
• Neutral Citation: MS 1983 HC 8
• Docket Number: No. 75 of 1982
• Date: 22 March 1983

Wade

and

Weekes

Byron, J.

No. 75 of 1982

High Court

Real property - Possession

Held: On the evidence the land on which the dwelling house was built belonged absolutely to the estate of the deceased and the beneficial interest in the house belonged to the plaintiff as a result of the gift of the land to the plaintiff by the deceased in her will. Declaration granted that plaintiff entitled to possession of the land and house since it was found that the plaintiff built the house. Injunction also granted.

Facts: The plaintiff claimed as the executrix of the deceased to be owner of a house situated on the deceased land. She also claimed a declaration that she was entitled to possession of the said land and that she was the owner of the said house, and an injunction restraining ;the defendant from entering the said premises.

Appearances:

Mr. David S. Brandt for the plaintiff.

Mr. Kenneth Allen for the defendant.

Byron, J.

1 In a specially endorsed writ the plaintiff suing as the Executrix of the Estate of Elizabeth Fergus deceased claimed to be the owner of house situate on land of Elizabeth Fergus deceased. She claimed that she built and furnished the house and let her uncle Samuel Allen deceased live in it rent free until his death in 1972, and after his death in 1977 and 1978 the defendant committed acts of trespass to house and land. She claimed therefore a Declaration that she is entitled to possession of the said land and that she is the owner of the said house, an injunction restraining the defendant from entering the said premise, mesne profits and damages.

2 The defendant entered a defence and counterclaim in which he denied that the plaintiff was owner of the owner of the house and Elizabeth Fergus deceased the owner of the land. He alleged that Samuel Allen deceased was a tenant in common with others of and a portion of the land and with the consent of the available joint owners Samuel Allen deceased selected a portion of the land and built the house on it with his money which he had sent to the plaintiff around 1963. That Samuel Allen deceased lived in the house from 1963 until his death in 1972 and in his Will he left the property for the defendant, who was also Executor of his Will, and the entry upon property was in pursuance of administering the estate. The defendant counterclaim that he is entitled to be registered as the legal owner of the portion of land upon which the dwelling house is situated or in the alternative that he has an equitable interest in the said land, and for partition of the said land with directions that that the land upon which the said dwelling house stands be transferred to him.

3 The plaintiff entered a document headed “Reply to Defence and Counterclaim” in which she joined issued with the defendant on his defence and counterclaim and repeated paragraphs 1-9 of the Statement of Claim.

4 Counsel for the plaintiff applied to have certain paragraphs of the defence struck out on the ground that they were embarrassing. Counsel for the defendant conceded that paragraph 17 of his defence was embarrassing and consented to having it struck out. The other paragraphs against which the plaintiff complained were paragraphs 14 – 16 of the defence. I overruled this submission because in my view the pleading was clear and particularised and at the stage of the proceedings they seemed to have some relevance to the issue in dispute between the parties.

5 Counsel for the defendant submitted that the plaintiff's pleadings were defective because in effect he failed to enter any defence to the counterclaim and the counterclaim therefore stood undefended.

6 The rule is set out in Order 18 Rule 3 of the Rules of the Supreme Court. In the 1976 Supreme Court Practice in the notes to this rule it is explained in this way.

“This rule distinguishes sharply between a “Reply and a Defence and Counterclaim.”……..If the plaintiff decides to answer both the defence and the counterclaim he must serve only one document incorporation both the reply and the defence to counterclaim. The practice is to entitle the whole pleading “Reply and Defence to Counterclaim” but to divide it into two sections, the first headed “Reply” and the second headed “Defence to Counterclaim.”

7 Then it says in describing the defence to counterclaim

“The defence to counterclaim must be pleaded in accordance to the rules applicable to the defence to a Statement of Claim. The plaintiff therefore cannot simply join issue on a counterclaim. Unless the plaintiff serves a defence to counterclaim, and specifically traverses every allegation of fact which he does not intend to admit, he will be deemed to admit them.”

8 Order 18 Rule 13 stipulates that every allegation of fact in a Statement of Claim or in a counterclaim must be traversed specifically otherwise it is deemed to be admitted.

9 It is clear that the document headed “Reply to Defence and Counterclaim” is bad in its form. To comply with the Rules it should be entitled “Reply and Defence to Counterclaim.” There should be one section of it headed “Reply” and in that section the plaintiff could join issue on the defence and another section be headed “Defence to Counterclaim” and it that section the plaintiff should specifically traverse every allegation he does not intend to admit.

10 In drafting his “Defence and Counterclaim” the defendant pleaded in his defence paragraph 1-19 and then under heading counterclaim add “And by way of counterclaim repeats paragraphs 3-19 of the defence and claims…………

11 Paragraphs 1-9 of the statement of claim in fact contains all of the material facts which the plaintiff needed to traverse the counterclaim and the matter in respect of which there was no mention in the Statement of Claim and which would therefore be deemed to be admitted could not support a judgment in the favour of the defendant on his counterclaim.

12 In my opinion the pleading of the defendant even if completely admitted would not justify an entry of judgment on the counterclaim.

13 With regard to the claim to be registered as the legal owner of the portion of lands upon which the said dwelling house is situated, there is no allegation of fact, which shows in what way the defendant is entitled to own the said land. The defendant has not alleged a documentary title to the land nor has he alleged a title by prescription and in any event in paragraph 18 of the defence he alleges that the plaintiff “broke and entered the said premises” so that there is an allegation of fact which would show that he had not been in continuous and undisturbed possession. He alleges that he was a tenant in common but he has alleged with whom he shared ownership. There is no allegation that the plaintiff was a tenant in common with him.

14 With regard to his alternative claim that he has an equitable interest in the said lands, he has not made allegations as to where the legal title lies, not what interest if any the plaintiff has. The pleadings do not show what basis an order could be made against the plaintiff that the defendant has an equitable interest or on whose legal title the equitable interest if any should be engrafted.

15 With regard to the claim for partition, there is no allegation as to who are the other undivided ownership is not described, there is no allegation at all as to how and in what way it is owned. None of the requirement of a partition action have been alleged to exist for example there is nothing in the counterclaim on which the court could for example there is nothing in the counterclaim on which the court could determine that all the undivided owners are before it or have had notice of these proceedings.

16 On the other hand the statement of claim alleged that the land was owned by Elizabeth Fergus deceased, and that the plaintiff built a house on the land and permitted the defendant to live in. The issues which arise on pursuing the defence are, who owns the legal title to the land, who built the house, was it the plaintiff or was the legal title to the land, who built the house, was it the plaintiff or was it Samuel or did both of them have investments in the house, what beneficial interests arise and in whose favour; who has in fact been in possession of the premises; and who is entitled to possession; there is also the ancillary question of whether the defendant trespassed, removed furniture from the house as is liable for damages.

17 The facts that I found are as follows:

18 Peter Allen and Rebecca Allen died many years ago leaving three children Elizabeth Fergus deceased, Samuel Allen deceased and Eliza Riley deceased who was the mother of Catherine Wade the plaintiff. Peter and Rebecca Allen also left some land known as the family land in St. Peter's, Montserrat. One of the issues that developed in the trial was that the defendant alleged that the property in dispute formed part of the family land while the plaintiff alleged that it belonged to the Estate of Elizabeth Fergus. No evidence was given to describe the family land in terms of its area or its boundaries. The only description given is that it ran from the hill down to the road.

19 Samuel Allen migrated to Canada where he worked with the Canadian National Railway. He owned his own home in Canada and lived there with his wife. In 1941 the defendant met Samuel Allen when he went to Canada to enlist in the...