Alexander et Al v Isaac
| Jurisdiction | Trinidad & Tobago |
| Judge | Warner, J. |
| Judgment Date | 15 June 1982 |
| Neutral Citation | TT 1982 HC 43 |
| Docket Number | No. 529 of 1976 |
| Court | High Court (Trinidad and Tobago) |
| Date | 15 June 1982 |
High Court
Warner, J.
No. 529 of 1976
Mrs. Alcala and J.A. Charles for the plaintiffs
R. Nelson for the defendant.
Real Property - Possession.
By Notice of motion dated 27 th February, 1976 and amended by leave on 17 th May stay, 1978, the plaintiffs are seeking the following reliefs:
that the defendant do comply with an order of the court made on the 28 th day of January, 1955, in High Court Action No.444 of 1954 (hereinafter referred to as the said Order).
that the defendant in accordance with the said order do pay to the plaintiffs their four-ninths share of the six thousand dollars ($6,000) being the price received by the plaintiff in respect of the sale by her contrary to the said order of a portion of that parcel of land described in the said order as comprising four and one half (4 2) acres of land situate at and known as Riseland Tobago, bound on the north by land of Robert James on the south by Riseland Estate on the east by Church Lands and on the west by Riseland Estate (hereinafter referred to as “the said parcel of land”).
that the defendant do render an account of the rents and/ or profits of the said parcel of land occupied by her contrary to the said order and pay to the plaintiffs their four-ninths share of the said rents and/or profits.
that the defendant by herself, her servants and/or agents or otherwise howsoever be restrained from interfering with or hindering in any way the sale or any steps taken or being taken to carry into effect the sale of the said land (save and except the portion thereof referred to in paragraph 3 above) in accordance with the said order.
that the defendant by herself, her servants and/or, agents otherwise howsoever be restrained from selling renting, leasing or in any other way disposing of the said lands save in accordance with the said order.
In support of the plaintiff's case there have bean filed the joint affidavit of Catherine Alexander, Ammelina Taylor and Mary Issac sworn to on 13 th February, 1976, the supplemental affidavit of Catherine Alexander sworn to on the 1 st April, 1976, the affidavit of Catherine Alexander sworn to on 27th July, 1977, the affidavit of Carlton Adams sworn to 22 nd July, 1977, the supplemental affidavit of Catherine Alexander sworn to 3 rd March, 1978 and the affidavit of Ammelina Taylor sworn to 4 th February, 1977.
For the defendant on the substantive application there have been filed the affidavit of Cecelia Isaac sworn to 22 nd December, 1976 and the affidavit of George Muraldo London dated 10 th June, 1978.
The case sought to be made out in the affidavits for the plaintiffs is that the plaintiffs as successors in title to Sara Cassandra Roach were entitled to a four-ninths share of the four and one half acre parcel at Riseland, Tobago described in Paragraph 2 of the Notice of Motion. This parcel, it is declared in the affidavits, the defendant wrongly purported t convey to herself exclusively by deed dated 27 th April, 1972, and of it purported to convey 1.42 acres of the parcel of land to one Ferdinand Burris for the price of $6,000.
The joint affidavit for the plaintiffs goes on to assert that the defendant has erected a house on the parcel of land and is attempting to dispose of further portions of the land.
There are documents annexed to the affidavits for the plaintiffs showing that the two plaintiffs were granted probate of the will of Sarah Roach on 6th November, 1960. One of the documents exhibited is a copy of the order of Ward, J. made on 28 th January, 1955 in action No.444 of 1954 declaring Sarah Roach to be entitled to an undivided four-ninths share of an interest in a 4 acre parcel at Riseland with the same boundaries as are now set out in paragraph 2 of the notice of motion s and a one acre parcel at Bethel, Tobago.
There is also a copy of an order of Corbin, J. made on 20 th March, 1956 in the same proceedings as the order of Ward, J. In this latter order plaintiffs' predecessor, Sarah Roach was granted leave to sell the one acre parcel for $1,500, which sum was to be deposited in court and after payment of costs four-ninths of the balance was to be paid to the plaintiffs, while two-ninths of the balance was to go to the defendants one of whom was defendant in the instant case. Also exhibited is a copy of an order of Phillips, J varying the order of Corbin, J. by altering the description of land giving a measurement of 1 rood 20 perches and reducing the purchase price to $1,200. Yet another exhibit is a copy of the deed by which the defendant Cecelia Isaac purported to convey the whole 4 acre parcel to herself. The capacity in which she purported to convey was as personal representative of her late husband who it is alleged in the deed had been seised and possessed of the parcel.
In effect the plaintiffs are saying that by reason of the order of the court, Sarah Roach had a four-ninths share in the Riseland property and that they as her personal representatives succeeded and conveyed to themselves as beneficiaries. Whatever title Cecelia Isaac had or has would be without prejudice to their four-ninths share.
Cecelia Isaac did not have such title as to enable her to convey the 4 acre Riseland parcel to herself absolutely. Further that Cecelia Isaac could not convey one acre of Riseland was purportedly sold to Burris.
The defendants' answer is contained in the two affidavits. In the first affidavit for the defendant Cecelia Isaac herself is saying that she herself has been in exclusive possession for over 16 years and she goes on to claim that whatever right to title the plaintiffs may have had has been extinguished by the Real Property Limitation Ordinance.
There is the further evidence that the plaintiffs did not seek to enforce the order of the court within 12 years next after it was made and that the enforcement of the judgment has become statute barred.
For the defendant much reliance has been placed on the affidavit of George London. Paragraphs 2 to 9 of this affidavit were struck out, but there remain paragraphs 10 to 13, London, who styles himself the common law husband of the defendant and says that this has been the state of affairs since 1937, avers that up to 1961 they both lived at Bethel and avers they went to live at Riseland in 1966; also that they maintained a garden at Riseland since 1952.
With regard to the defendant's claim to have had exclusive possession over the years, the plaintiffs have sought to counter this by the affidavit in reply of Catherine Alexander sworn to 25th July, 1977 and that of Ammeline Taylor sworn to 3 rd February, 1977.
The affidavit of Ammelina Taylor contains the allegation that in 1965 the first named plaintiff (wrongly described there as the first named defendant) entered on the parcel at Riseland and reaped produce whereupon the defendant Cecelia Isaac called in the Police who declined to intervene.
This is supported in the affidavit of Catherine Alexander sworn to on 27 th July, 1977. She avers that since the grant of probate she exercised all the rights of a co-owner over and in respect of the parcel at Riseland and goes on to say that she was actively engaged in trying to sell the parcel of land. She herself entered on the land in 1966 with one Norman John for the purpose of showing him the land and negotiating a sale but the defendant ordered and chased them away.
Catherine Alexander gives two other instances of attempts by her at negotiating sale which resulted in prospective buyers or their representative being chased or warned off the land by the defendant. It does not appear however, that in these instances Catherine Alexander visited the land with them.
There is an inconsistency between two of the affidavits of Catherine Alexander as in her first affidavit sworn to 13 th February, 1976 she stated that following the judgment given on 28 th January, 1955 the defendant continued and remained in exclusive possession and occupation of the 4 acre parcel at Riseland, while in her affidavit in reply to the affidavit of Cecelia Isaac she states at paragraph 7(a) the following: AI deny that the defendant has been in exclusive or uninterrupted or undisturbed possession of the said parcel of land since the said order was made.” In paragraph 3 there is an attempt at explanation of the inconsistency. It is the following:
AThrough inadvertence I stated in my affidavit sworn the 5 th day of February, 1976 jointly with the second plaintiff that the defendant has since January, 1955 continued and remained in exclusive possession and occupation of the second parcel of land described in the order of the Honorable Mr. Justice E.R.L. Ward dated the 28 th January, 1955.”
This averment that the defendant had since 1955 continued and remained in exclusive possession and occupation of Riseland was seized upon by the defendant and in her affidavit sworn to on 22 nd December, 1976 she says
AI admit so much of paragraph 5 of the affidavit(of Catherine Alexander) of 13 th January, 1976 and say that I have since January 28,1955 continued and remained in exclusive possession end occupation of the said lands”.
Where two affidavits of the same person in the same proceedings contain an inconsistency, an explanation is usually looked for and the court must decide whether it accepts or rejects the explanation. I accept the explanation of Catherine Alexander that it was inadvertence.
Put more briefly the case for the plaintiffs is that they have always since the order of Ward, J. had a four-ninths share in Riseland while the defendant has had a two-ninths share but over the years and more particularly since 1972 has done several acts as it she were the owner of the whole and no ono else had a share. The defendant says in answer that she was entitled to do this because she has...
To continue reading
Request your trial