The Wills and Probate Ordinance, Chapter 8 Number 2 S 17 of the Laws of Trinidad and Tobago v Dona Da Costa Martinez
| Jurisdiction | Trinidad & Tobago |
| Judge | Madame Justice Quinlan-Williams |
| Judgment Date | 12 September 2019 |
| Neutral Citation | TT 2019 HC 290 |
| Docket Number | CLAIM NO: CV2018-00834 |
| Court | High Court (Trinidad and Tobago) |
| Year | 2019 |
and
the Honourable Madame Justice Quinlan-Williams
CLAIM NO: CV2018-00834
CLAIM NO: CV2018-01490
IN THE HIGH COURT OF JUSTICE
Mr. Richard M. Thomas instructed by Ms. Angelique S. Olowe for the Applicant/Claimant
Mr. Brian Busby instructed by Ms. Jozanne Quamina for the Defendant
Claire Wilcox otherwise referred to as Claire Da Costa (hereinafter referred to as “Claire”) died intestate on the 12 th June 2011. Letters of Administration was granted to her mother Cecelia Da Costa on the 3 rd July 2015, appointing her as the Legal Personal Representative of Claire's estate. Cecelia Da Costa on the 6 th October 2017 departed this life, also intestate. Before Cecelia Da Costa's death, she appointed Dona Da Costa (hereinafter referred to as “Dona”) as her lawful attorney by virtue of Power of Attorney DE20160288282817 D001 dated the 6 th December 2016. To date, no grant De Bonis Non has been obtained as it relates to Claire's estate; neither has there been an application for Letters of Administration in the estate of Cecelia Da Costa.
The applicant/claimant and defendant in these related matters are no strangers to this court. Preceding the instant matters currently engaging the court's attention, was a related claim intituled CV2016-04476 Cecelia Da Costa (In her capacity as Legal Personal Representative of the Estate of Claire Wilcox also known as Claire Da Costa (deceased) By Her Lawful Attorney Dona Da Costa Martinez by virtue of Power of Attorney DE20160288282817 D001 dated the 6th day of December 2016) v Theodore Ryan.
In that claim, on the 24 th November 2017, Dona filed an application with an affidavit to be appointed the Administrator Ad Litem of the estate of Claire pursuant to section 37 of the Wills and Probate Ordinance Chapter 8 No. 2; and a supplemental affidavit dated the 11 th December 2017 to be substituted as a party pursuant to Part 19.5(1) of the Civil Proceedings Rules (“CPR”). However, the said application was denied by the court which resulted in the dismissal of claim CV2016-04476 in its entirety on the 8 th March 2018.
Consequently, on the 12 th March 2018 Dona filed ex parte, an entirely new application CV2018-00834, with a certificate of urgency to be appointed Administrator Ad Litem and Ad Colligenda Bona of Claire's estate pursuant to section 37 of the Wills and Probate Ordinance Chapter 8 No. 2. By the Order dated the 23 rd March 2018, Dona was appointed Administrator Ad Litem and Ad Colligenda Bona of Claire's estate. Additionally, an injunction against the defendant was granted whereby the property known and described as Lot No. 25 Baden Powell Street, Woodbrook, Port of Spain (hereinafter referred to as “the subject property”) was not to be sold, disturbed or altered in anyway until the determination of these proceedings.
As a result of the order appointing Dona as the Administrator Ad Litem and Ad Colligenda Bona of Claire's estate, she commenced fresh proceedings CV2018-01490 by way of claim form and statement of case on the 27 th April 2018 against the defendant wherein she claimed the following reliefs:
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a. A Declaration that the deceased, Claire Wilcox otherwise Claire Da Costa engaged in partnership business with the Defendant in T.R. Services Limited and ‘Simple Escapes” for the purposed of profit.
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b. A Declaration that the deceased and the Defendant acquired real property together through which the Partnership business was conducted at ALL AND SINGLUAR that certain piece or parcel of land situate at Woodbrook, in the City of Port of Spain, in the island of Trinidad, Known as Lot No. 25 Baden Powell Street measuring Four Hundred and Thirty-Four Point Nineteen Square Metres (434.19M2) and abutting on the North upon Baden Powell Street on the South upon other lands of the Port of Spain Corporation and the East upon Lot No. 23 Baden Powell Street and on the West upon Lot No. 27 Baden Powell Street Together with the buildings thereon and the appurtenances thereto belonging, the same created by Deed of Lease in Deed dated 30 th day of July 1996 and Registered as No. 14498 of 1996 and in which the partnership business was conducted.
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c. A Declaration that the deceased is entitled to a half share of the partnership assets including but not limited to a half share No. 25 Baden Powell Street, Woodbrook and in the and whatever profits have been accrued to date and more particularly since the date of her death on 12 th June 2011 pursuant to Section 45 of the Partnership Act.
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d. An Accounting for the profits made under T R Services Limited accrued at the date of death of the Deceased 12 th June 2011.
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e. Repayment of personal loans advanced to the Defendant by the Deceased to the estate of the Deceased.
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f. An Accounting of the Colonial Life Insurance Company (Trinidad) Limited investments plan E7PA, under contract no. R 000 222219-issue date of contract 12 th day of April 2008 accrued at the date of the death of the Deceased 12 th June 2011.
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g. A final settlement of accounts as between the Defendant and the estate of the Deceased to such share of the profits made since the date of death of the Deceased, from the 12 th day of June 2011 or as assessed by the Court as to what partnership assets is attributable to the estate of the Deceased.
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h. Interest at the rate of 6% a year on the amount of the Deceased share of the partnership assets.
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i. Alternatively, that the Memorandum of Agreement dated the 22 nd day of December 2000 and made between the Claire Da Costa Wilcox (Deceased) and the Defendant be given full effect.
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j. Such further and/or other relief as to the Court may seem just and/or expedient.
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k. Costs.
On the 18 th June 2018 in claim CV2018-01490, Theodore Ryan filed a Notice of Application applying inter alia for the claim form and statement of case in the matter to be struck out; and in the alternative, that time for the defendant to file a defence be extended to 28 clear days from the determination of the application.
Furthermore, on the 21 st June 2018 Theodore Ryan filed another Notice of Application, in Dona's ex parte application CV2018-00834, whereby he sought inter alia to be added as a respondent to Dona's ex parte application; that the order dated the 23 rd March 2018 appointing Dona as Administrator Ad Litem and Ad Colligenda Bona of Claire's estate be set aside and the related ex parte application filed on the 12 th March 2018 be struck out and/or dismissed.
The defendant contends that the order in CV2018-00834 dated the 23 rd March 2018 appointing Dona as Administrator Ad Litem and Ad Colligenda Bona of Claire's estate ought to be set aside. It is his case that the application relating to that order, was the same application that was made in CV2016-04476 (save for the addition of the words “And Ad Colligenda Bona” in the later application in CV2018-00834). In CV2016-04476 the defendant Theodore Ryan, took the preliminary objection that the claim was void as Dona did not have the locus standi to commence that action. After the court's consideration of written and oral submissions on both sides, the court agreed with the defendant's objection and Dona's application and claim were dismissed on the 8 th March 2018.
The defendant therefore asserts that the right course of action that Dona ought to have adopted, was to appeal the order dismissing the application and claim as opposed to instituting new proceedings. As a result, Dona's filing of the ex parte application in CV2018-00834 which is in substance the same application that was made in CV2016-04476, is deemed res judicata as the issues were previously decided and is consequently an abuse of process.
Furthermore, the defendant stated that court had no power pursuant to section 37 of the Wills and Probate Ordinance Chapter 8 No. 2 to have granted the injunction against him and to appoint Dona as the Administrator Ad Litem and Ad Colligenda Bona of Claire's estate. Dona's failure to obtain Letters of Administration in the estate of Cecelia Da Costa (the deceased Legal Personal Representative for the estate of Claire), and/or a grant De Bonis Non in the estate of Claire renders the claim void ab initio as there is no legally constituted claimant.
The defendant affirms that a claim can only be initiated by the personal representative of the deceased's estate, where a person dies intestate as is the case here, upon the receipt of these associated grants which Dona has so failed to obtain. As a result, Dona has no locus standi to bring the claim CV2018-01490 against him because section 37 of the Wills and Probate Ordinance Chapter 8 No. 2 does not permit Dona in law, to commence legal proceedings.
The issues for the court's determination are:
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a. Whether Dona's applications in CV2016-04476 and CV2018-00834 are materially the same amounting to res judicata and an abuse of process, thereby rendering the court's order dated the 23 rd March 2018 void; if not
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b. Whether the court had the power under section 37 of the Wills and Probate Ordinance Chapter 8 No. 2 to appoint Dona as Administrator Ad Litem and/or Ad Colligenda Bona in the...
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