Weekes v Wade

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Bishop, J.A.
• Judgment Date: 23 January 1985
• Neutral Citation: MS 1985 CA 1
• Docket Number: Civil Appeal No. 2 of 1982
• Date: 23 January 1985

Weekes

and

Wade

Robotham, C.J. Bishop, J.A. Williams, J.A. (Acting)

Civil Appeal No. 2 of 1982

Court of Appeal

Practice and procedure - Rules of the Supreme Court — Whether judge should dismiss action for failure to follow Supreme Court ruling that lands belonged to estate of the deceased — Rules where pleadings disclosed serious issues

Real Property - Title — Evidence that title to land transferred to appellant by testamentary disposition

Held: Though the plaintiff's pleading was defective, the court had a duty over and above that of seeing that the Rules of the Supreme Court were obeyed to see that justice is done between parties to an action in which serious issues have crystallized on the face of the pleadings as a whole. The judge's findings in regard to the certificate of title was not unreasonable. Appeal dismissed.

Held: (i) The respondent's pleadings had weaknesses, but the Rules of the Supreme Court gave the court discretion on how to treat these failings. The failings did not automatically nullify the respondent's pleadings. The main duty of the court was to see justice done; (ii) both parties agreed to admission of title as evidence. Further, the appellant produced no evidence to impugn the title; (iii) the issue of partition did not arise: question was who owned the land; (iv) giving the strength of the evidence the judge's findings were not unreasonable.

Facts: The plaintiff/respondent as executrix of the estate of the deceased claimed in an action against the defendant/appellant a declaration that certain land belonged to the estate of the deceased, while a wall house on that land belonged to the plaintiff. Judgment was given for the plaintiff and the defendant appealed inter alia on the grounds that the plaintiff's case should have been dismissed for failure to comply with the Rules of the Supreme Court and that the judge's findings as regard the certificate of title were unreasonable or against the weight of the evidence.

Facts: The respondent obtained a judgment entitling her to land willed to her, ordering an injunction which restrained the appellant from entering the land and awarding damages against the appellant for wrongfully entering the land. An appeal was made on the grounds that : (1) respondents failed to file correct reply; (2) the trial judge erred in giving undue importance to a land title submitted by the respondent after writs were served (3) Further, the land title was improperly obtained as the judge erred in not applying the Partition Act (Cap. 253) (4) judge erred in his assessment of the evidence as to who built the house on the disputed property.

Bishop, J.A.

1 Catherine Wade, as executrix of the Estate of Elizabeth Fergus, deceased, claimed in an action against Thomas Weekes (1) a declaration that certain land and hereditaments thereon, at St. Peters, belonged to the Estate of Elizabeth Fergus, while a wall house on that said land belonged to her (Catherine Wade); (2) an injunction to restrain him, his servants or agents or otherwise from entering upon or performing acts of trespass on the said land and hereditaments; (3) damages for wrongfully entering on the land and hereditaments and breaking off a lock on house and removing furniture.

2 In respect of the land Catherine Wade alleged in the Statement of Claim that (i) the Will of Elizabeth Fergus dated 9th February 1970 named her as Executrix (ii) she was granted probate of the Will on the 6th October 1978 (iii) the said Will contained a devise of 1 ¹/₂ acres of land showing her as a devisee of part of the land (iv) in 1963, with permission from Elizabeth Fergus, she - Catherine Wade - built a concrete house on that same part of the land (v) in 1977 Thomas Weekes wrongfully entered on the land and broke off a lock on the house (vi) in 1978 he repeated his wrongful entry and planted posts in the land.

3 As far as the house was concerned Catherine Wade asserted that (i) she was owner of the house built on the land of Elizabeth Fergus (ii) she built the house (iii) she furnished it and allowed her uncle Samuel B. Allen to live in it, rent free, until his death in September 1972, (iv) following his death she resumed possession of the house and locked it (v) about the year 1977 he wrongfully entered it and broke off a lock (vi) in 1978 he again entered it wrongfully and broke off another lock.

4 In the Statement of Claim Catherine Wade did not plead that she was in possession of a Certificate of Title to the land in dispute; and it was not disputed that when the action commenced she had not yet been issued with a Certificate of Title. However, during the trial, such a certificate was admitted as evidence, by consent.

5 Thomas Weekes not only defended the action; he made a counterclaim. By and large the facts on which he relied for a defence to the claim were the same on which he depended to support his counterclaim that 1. he was entitled to be registered as the legal owner of the land on which the house was erected. 2. Alternatively he had an equitable interest in the said land. 3. There should be a partition of the land with a specific direction that the portion on which the house stood be transferred to him and registered in his name.

6 After overruling a submission to the effect that the assertions of fact in the counterclaim had not been defended in the plaintiff's subsequent pleading, the learned trial judge heard the evidence of Catherine Wade and Thomas Weekes and he indicated that on the totality of the evidence he was satisfied that (a) the beneficial interest in the house belonged to Catherine Wade, (b) the land on which the house was built belonged absolutely to the Estate of Elizabeth Fergus, and (c) the testamentary disposition of the land to Catherine Wade by Elizabeth Fergus conferred the right to have the title transferred to her absolutely.

7 The trial judge declared that the plaintiff was entitled to possession of the house and the land, he granted the injunction sought and awarded $2,430 (the value of items of furniture that Thomas Weekes admitted removing from the house) as damages.

8 Thomas Weekes appealed against the decision of the learned trial judge on six grounds, namely: -

• “(1) The Learned Trial Judge was wrong in law in not holding as the defendant submitted that the plaintiff's document entitled REPLY TO DEFENCE AND COUNTERCLAIM could not be considered a defence by any interpretation of the Rules of Court and that the plaintiff's failure to file a defence to the Defendant's Counterclaim was fatal.

• (2) Even if the Counterclaim was not clearly set out, and the defendant contends they were, the plaintiff was at liberty to request further particulars thereof and could not in law ignore it altogether.

• (3) The Learned Trial Judge erroneously attached weight to the fact that the plaintiff produced a Land Certificate in respect of the said lands since: -

  • (i) It was acquired since the issue of the Writ;

  • (ii) The action itself is entitled Catherine Wade as Executrix of the Estate of Elizabeth Fergus;

  • (iii) Knowledge of its existence was not disclosed to the defendant until the day of trial and as far as the defendant was concerned, both parties were claiming in respect of unregistered lands;

  • (iv) Title could not have been properly obtained by the plaintiff if it was disclosed to the Registrar of Lands that some other person claimed an interest in the said lands, a fact of which the plaintiff had notice.

• (4) By virtue of 3 above the Learned Trial Judge was wrong in fact to conclude that there was no evidence to show that the Certificate was improperly obtained.

• (5) The Learned Trial Judge erred in finding that partition could not be ordered since by virtue of the wide powers contained in Section 5 of the partition Act (Cap. 253) there were sufficient facts to bring an order for partition within the competence of the court.

• (6) The finding that the dwelling house in question was built by the plaintiff is against the weight of the evidence in particular the Learned Trial Judge in his finding of fact did not advert or give sufficient weight to certain uncontroverted facts which favoured the case for the defendant:

  • Most import are:

  • (i) The fact that after completion of the dwelling house the plaintiff registered the house at the Department of Inland Revenue for the purpose of payment of property tax in the name of Samuel B. Allen and that it...