Sooklal v Philip
| Jurisdiction | Trinidad & Tobago |
| Judge | Rajkumar, J. |
| Judgment Date | 31 May 2012 |
| Neutral Citation | TT 2012 HC 189 |
| Docket Number | CV 135 of 2011 |
| Court | High Court (Trinidad and Tobago) |
| Date | 31 May 2012 |
High Court
Rajkumar, J.
CV 135 of 2011
Mr. Ramesh Deena for the claimant.
Mr. Kenneth O'Brien instructed by Ms. A Humphrey for the defendant.
Real property - Ownership — Whether a donation mortis causa was created.
Vernon Noble (the deceased), lived at 9 Carli Bay Road, St. Andrews Village, Couva (the said property) with his aunt Mathilda Atkins until her death in 1974. The claimant and her family were their next door neighbours. Mathilda Atkins by virtue of Deed No. 10636 of 1956 was the legal owner of the said property.
On the 27th day of November 1978 by her will Mathilda Atkins appointed Vernon Noble as her sole executor and the beneficiary under her will in respect of the said property. Vernon Noble during his lifetime did not apply for a grant of probate in respect of the said will. He died on the 2nd day of June 2004, intestate. The defendant has since applied for a grant of Letters Administration for his Estate.
The claimant sought:
- A declaration that the claimant has a right to possession of the concrete and wooden house and the land situate at No. 9 Carli Bay Road, Couva formerly owned by Vernon Noble. 2. An injunction restraining the defendant whether by herself, her servant and/or agents from trespassing, fencing and/or removing or demolishing the house at No. 9 Carli Bay Road. 3. An injunction restraining the defendant, her servants and/or agents from engaging in acts of threats and intimidation against the claimant and members of her family.
She based her claim on the following:–
The claimant claims that she and her relatives of No. 11 Carli Bay Road, Couva resided as next door neighbours of Vernon Noble (Deceased) who lived as No. 9 Carli Bay Road, Couva since 1974. This is not disputed.
The claimant claims that she and her niece Esther were at the deceased's bedside on the 1st day of June 2004, when the deceased handed the keys to the house to the claimant as well as legal documents, one of which was the Deed to the subject property, telling her he felt that he would not make it and he wanted her to have the house and land on which he was living.
The claimant claimed that she and her family assisted Vernon Noble in various ways, for example,
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i. by the provision of an unauthorized electricity connection when his electricity was disconnected in 1986,
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ii. by running a hose from her home to the property in 1995 to provide him with water,
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iii. by paying for the digging and building of latrines in 1993 and 2002 at his house,
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iv. by repairing a concrete pillar there also,
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v. by providing meals and laundry services,
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vi. by maintaining the house and yard of the deceased,
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vii. by her brother trimming his hair,
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viii. by her mother cleaning his foot when he got injured- in 1994.
The claimant claimed that in 1995 the Deceased, in response to her request to purchase an unspecified portion of lot No.9, told the claimant not to worry, that the property would be hers “anyway”.
The claimant further claimed that sometime in March, 2004 Vernon Noble told her he appreciated all that she had done for him, and, if she took care of his funeral expenses he would give her the property by his will.
However, he never acted on the promise to make a will, nor visited the attorney-at-law whom the claimant had contacted on the matter, and who he allegedly told her he would visit.
The claimant claimed that on 1st June, 2004 she visited the Deceased who was on his bed. She claimed he told her he felt he would not make it. He refused her offer to seek medical attention. He told her he wanted her to have the property and then gave her the keys to the house, the Deed for the property, and unspecified other legal documents.
Vernon Noble was found dead in his house on 2nd June, 2004. He died intestate. The claimant paid the funeral expenses.
Whether the deceased on that occasion effected a gift to the claimant in contemplation of his impending death – a donatio mortis causa.
- I find that the alleged death bed discussions did not occur, or if they did occur at all, that they did not occur in the manner portrayed by the claimant. 2. Assuming, but expressly without deciding, that a donatio mortis causa can be created in this jurisdiction in respect of real property — I find that, on the evidence, it was more likely than not, i. that the claimant was not given “keys” to the house but rather one key, ii. that it was not the only key to the house, which had a front door and a back door iii. that the claimant and her family already had a key to his house, given their alleged daily visits to his home to look after the deceased, and iv. that any delivery of keys was to the claimant as a custodian and not for the purpose of granting her dominion over the house. 3. I find that the deceased did not himself have such a title as would permit him to hand over to the claimant any essential indicia of title. 4. I find that the documents allegedly handed over to the claimant, if any were indeed handed over to her in the circumstances she alleged, were insufficient to constitute essential indicia of title so as to satisfy the requirements of a donatio mortis causa.
The claimant's claim is dismissed with costs to be paid by her to the defendant in the sum of $14,000.00
The claimant alleges that
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i. She and her family took care of the Deceased during his lifetime by providing meals for him.
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ii. The claimant and her family assisted the deceased by supplying him with electricity and water, and also by upkeep of his house and yard.
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iii. The claimant in the year 1995 approached the deceased to purchase a portion of his land, to which his response was “don't worry with that it will be yours anyway”.
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iv. In or about March 2004, the deceased told the claimant he wanted to will the property to her when he died provided she took care of his funeral expenses.
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v. The claimant consulted an attorney-at-law in this regard and informed the deceased that she had done so, but the deceased never visited him.
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vi. The claimant and her niece Esther were at the deceased bedside on the 1st day of June 2004, and the deceased handed to the claimant the keys to the house, the Deed for the property, as well as other legal documents, saying he felt he would not make it and he wanted her to have the property.
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vii. The deceased died on the 2nd day of June 2004 and the cost of the funeral- $3,171.00- was borne by the claimant.
Venus Franklin is a neighbour of the claimant and her family. She knew Vernon Noble. The witness claimed to know, from what he told her, that Vernon Noble worked as a handyman/gardener. She confirmed that the deceased was supplied with water by a hose from the claimant's house.
The Witness did not know Vernon Noble to have suffered any injury and she knew that he used to work, though he had stopped, possibly 5 years before he died.
Before he died Vernon Nobel cleaned his property himself. He was able to do so. She would see the claimant maintaining the property every 2–3 months.
She gave evidence of having seen Vernon Noble cleaning and clearing the yard at No. 11 Carli Bay Road, as well as the claimant's nephews and brother-in-law helping Vernon Noble to clean and clear the yard at No. 9 Carli Bay Road. They would trim the tress approximately twice per year and rake leaves. This witness gave evidence that Vernon Noble gave the claimant's family foodstuff to store in their refrigerator. She also knew that he obtained water from the claimant via a hose.
She is one of the nieces of the claimant, and the only person other than the claimant to have been present on the night before the deceased died, when the gift was allegedly made.
The claimant and her nephews assisted Vernon Noble to cut grass, trim trees and cleaned his yard about twice per month after he became ill. He had become ill about 5 or 6 years before he died, with pains in arms and legs, shortness of breath, swelling of his legs at times, and headaches. She confirmed however that she knew he was a gardener and he had worked, though she did not know when he stopped working.
She testified that he had no injuries. He could use his right and left hand, but he was sick and unable to work. Her family tidied up after Vernon Noble every day.
The witness said that between 6 pm and 8 pm on 1st June, 2004 she visited Vernon Noble at his home. She went there to tidy up his living area and surroundings. She was alone with him at first. Her aunt came afterwards. She made tea for him with the use of a gas stove.
The witness said that Vernon Noble told the claimant that he did not have a family. Vernon Noble handed the claimant a stack of documents, and told her he wanted her to help him do the processing of those documents and that he wanted her to have the property.
Esther Sooklal said that she and the claimant together left the deceased at approximately 8 pm that evening. He was alive when they left. That was the last time she saw the deceased alive.
The claimant is an Accounts Officer. She knew Matilda Atkins and Vernon Noble since about 1974.
Matilda Atkins died in April, 1980. In 1986, electricity to the house was disconnected and the claimant provided Vernon Noble with electricity thereafter by means an unauthorised connection from a wall plug at her house, via with an extension cord. She also supplied Vernon Noble with water from a tap in her yard and a hose.
The claimant's evidence is that she and her relatives assisted Vernon Noble, including when he was allegedly injured in 1992 and 1994. She assisted the deceased with the general upkeep of his property and knew him to have a partial...
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