William Luther Brookes and another v James Hendrickson and another CIVIL SUIT NO: 51 OF 1997

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1 Page 1 Eastern Caribbean Supreme Court Reports/ 2000 / St. Kitts and Nevis / William Luther Brookes and another v James Hendrickson and another - [2000] ECSCJ No. 215 [2000] ECSCJ No. 215 William Luther Brookes and another v James Hendrickson and another CIVIL SUIT NO: 51 OF 1997 EASTERN CARIBBEAN SUPREME COURT; HIGH COURT OF JUSTICE; SAINT CHRISTOPHER AND NEVIS; (NEVIS CIRCUIT) Saunders, J. 26 June June 2000 Mr. Mark Brantley for the Plaintiff Ms. Joyah Sutton-Daniel and Mr. G. Roman for the Defendants JUDGMENT 1 SAUNDERS, J. The plaintiffs are siblings and are respectively the uncle and aunt of the defendants. Their nephews, the two defendants, are children of a third sibling, now deceased. This case concerns the ownership of a parcel of land, commonly referred to as Garden Lands. Are Garden Lands owned by the estate of the third sibling or do they still form part of the estate of the deceased father of the siblings (i.e. the grandfather of the nephews)? The plaintiffs allege that Garden Lands form part of their deceased father's estate. The nephews maintain that their grandfather during his lifetime gave those lands to their father. The nephews say that they have since inherited the lands. 2 There is no dispute that Garden Lands were once owned by Joshua Brookes, deceased. He was the grandfather of the nephews and father of the siblings. There is a registered deed dated the 31 st October, 1944 conveying the lands to him. The deed states that the lands are 3 acres 2 roods in extent. They were recently surveyed however and found to be

2 Page acres. Joshua Brookes died in He was survived by four children, i.e. the two plaintiffs, a daughter called Daisy, and Joseph Brookes, the father of the two defendants. 3 Before he died, Joshua Brookes owned or controlled at least two other parcels of land. There was a piece at Cox Village on which the plaintiff, William Luther (apparently better known as "Luther"), resides. The evidence before me is that this parcel is about one quarter of an acre. It has never been surveyed however. The second parcel used to be owned by the sister of Joshua Brookes. She had no children. Joshua Brookes looked after her in her old age and after she died, Joshua Brookes assumed ownership of that parcel. It is now occupied by the second plaintiff, Viola Stapleton. That parcel too has never been surveyed but there is evidence that it is about one acre in extent. There is a suggestion from the defendants that Joshua Brookes owned another parcel of land that he gave to his daughter Daisy but that evidence is too tenuous for me to accept. 4 The two plaintiffs testified in their own behalf. For the defendants, James Hendrickson gave evidence and he called as witnesses his maternal half-sister and an old villager, Mr. Chieverton. The evidence of Mr. Chieverton was not very helpful as it was apparent that his memory and recollection were poor. The evidence given in the case was extremely conflicting. Before I attempt some analysis of the major discrepancies, I should perhaps round off the evidence that was either unchallenged or was agreed. 5 In respect of evidence falling into the category of unchallenged, the plaintiffs derived some advantage from the fact that their witnesses, being elderly persons, could speak to matters occurring further into the past. I have no reason to disbelieve them when they gave the following testimony. During the lifetime of Joshua Brookes, deceased, all of the children of that deceased, including Joseph, the father of the nephews, used to work Garden Lands. After Joshua Brookes died, Joseph "moved into the lands and began cultivating them". Joseph died in While he was alive Joseph never had any dispute with his siblings concerning ownership of lands. The evidence is that Joseph and his siblings had a good relationship right down to the time that Joseph died. 6 Apart from the above facts, the testimonies diverge significantly. The plaintiffs acknowledge that Joseph and his family used to work Garden Lands. They state however that both before and after Joseph's death, other family members also used to work the lands, reap fruit therefrom and graze animals on them. According to the plaintiffs, those lands were always regarded as family lands. While no attempt was ever made to interfere with Joseph or his common law wife or their children, equally no one ever interfered with the right, and the exercise thereof, of other family members to extract profits from the land from time to time. The plaintiffs only began to take a totally different attitude towards the defendants' occupation of the lands after the defendants brought a backhoe onto the lands and began to clear the same. At that point, the plaintiffs applied for letters of administration in the estate of their father and then commenced court action against their nephews. 7 The defendants' testimony is that as far back as they are aware, only Joseph Brookes and his immediate family ever worked Garden Lands. Neither the plaintiffs nor children of the plaintiffs were ever seen cultivating or reaping from the lands. The sole exception was a son of one of the plaintiffs named Mervyn. But, Mervyn was expressly permitted to go onto the land by Joseph when the latter was alive and Mervyn is still on the land but with the permission of the defendants. The defendants say that their grandfather divided up his lands before he died and allotted various parcels to his several children. Their aunt Viola was given the one acre piece she now lives on. To uncle Luther was given the quarter of an acre parcel he now lives on. And Joseph, their father, was given Garden Lands then thought to comprise three and a half acres. The defendants produced the original deed of conveyance for the lands and claimed that their father had received it from their grandfather as evidence of the gift by the latter. 8 Of course, the defendants' evidence as to how their father originally came by Garden Lands is unreliable hearsay. But beyond that, it seems to me that the testimony of the Defendant is inconsistent with the agreed and unchallenged evidence. For example, no cogent reason was advanced as to why Joshua Brookes would wish to bestow upon one son at least twelve times the amount of land that he gave to an elder son. Isn't it likely that such an inequitable division by the old man would have provoked some family discord or bad feeling? Yet, the overwhelming evidence is that those

3 Page 3 two sons, and indeed all the siblings, continued to have a good relationship with no disputes over ownership of lands both before and after the death of their father. 9 On the other hand, if it is true that these lands were always regarded by all as family lands then that arrangement can explain why Joseph and his immediate family were allowed to occupy, work and cultivate the same without let or hindrance. It also explains why it was only when the nephews did an act that departed from the "family lands" concept, namely the bringing of heavy equipment onto the lands for a selfish purpose, that the plaintiffs sprang into action. 10 Having heard and seen the witnesses, I prefer the testimony of the plaintiffs to that of the defendants. In particular, two pieces of evidence given by Viola Stapleton appeared to me to have the ring of truth. At one point she stated that the lands were never fenced and that no one ever tried to exclude her or any other family members from the land. And then she quietly exclaimed, almost talking to herself,... "even if they try to talk to say anything like I can't be there, I don't pay them any attention". Such indignation seems to me to carry the stamp of someone who has neither been dispossessed nor has discontinued possession of the lands in question. 11 The other occasion was when she gave her reason for ceasing to work the disputed lands herself. She said she did so because she did not feel comfortable working alongside Joseph's common law wife. I find it inconceivable that she would have fabricated that reason beforehand for the benefit of the court or made it up there and then on the witness stand. I believe she was telling the truth. 11 After considering the evidence given I find that up to the date of Joshua Brookes' death, Garden Lands were worked by all of Joshua's children. After Joshua's death, Joseph took the greatest interest in those lands and began cultivating them for himself. He and his family were permitted to work those lands. However, other family members continued from time to time to work or reap from the land. In particular, Viola Stapleton worked those lands alongside Joseph's family until some friction developed between her and her brother's common law wife. Even after she ceased cultivating the lands, she continued, without seeking or obtaining Joseph's permission, to tie her donkey on the land and to pick fruits therefrom. So too did other family members. 12 At some point, Viola's son, Mervyn, was permitted by Joseph to occupy a wooden shack on the land. Mervyn still lives on the land. But the granting of such permission and Mervyn's continuous occupation with the leave of Joseph and later his children, are matters that are again consistent with the concept of "family land". 13 Counsel for the defendants cited in support of her case decisions of this court in Tyson v. Tyson High Court Suit (Nevis) No. 12 of 1978 and In the Matter of an Application for a First Certificate of Title by Pamela Kalski High Court Suit (Nevis) No. 20 of The findings of fact that I have made, have to a large extent eroded the factual premise upon which reliance upon these cases rests. In Tyson, the factual relationship between the person in possession (a brother) and the dispossessed person (his sister) was very different from what I have found in this case. In Tyson, the brother so notoriously exercised his dominion over the lands that the sister dared not put her house there without asking him. She felt constrained to beg his permission. The brother orally offered and the sister actually agreed to rent (albeit on a peppercorn basis) a portion of the disputed lands. To this end legal documents were drawn reflecting the transaction but, at the last moment, the sister declined to execute them. Instead she surreptitiously placed her house on the lands whereupon the brother took immediate retaliatory action. The learned Judge had no hesitation in finding as a fact, at page 13 of the judgment, that the brother exercised "intentional physical control of the lands in question to the exclusion of all others" and that the sister "in all probability recognised his authority over the land". This is not on all fours with the circumstances of the instant case. 14 The Kalski matter concerned approximately 77 acres of land. Some of the land was tenanted. The evidence revealed that the person claiming through adverse possession collected all the rents from the tenants, used the monies collected to pay taxes and other expenses for the land and kept the remainder. The person seeking to recover possession could not even get the tenants to recognise her authority. She attempted to get them to pay the rents to her but they refused.

4 Page 4 15 In each of these cases, the character of the possession was adverse. It was in open defiance of the legal entitlement of the person seeking to recover possession, inconsistent with the right of the true owner. In Kalski, Singh, J. (as he then was) at page 7 defined adverse possession in this way: "Where a person possesses property in a manner in which he is not entitled to possess it and without anything to show that he possesses it otherwise than as owner, that is, with the intention of excluding all persons from it, including the true owner, he is in adverse possession of it". 16 In land disputes in the Caribbean, the concept of adverse possession is often invoked. This is not surprising. For a variety of reasons, land has been transmitted without recourse to adherence to the requisite and strict legal formalities. Moreover, there is a strong notion held by many that lands should be kept within the family and passed on from generation to generation. This notion usually poses more problems than it resolves for the future generations. 18 The law has evolved certain basic principles in relation to adverse possession. In the absence of evidence to the contrary, the paper title owner of land is deemed to be in possession of the land. The law would therefore ascribe possession to such person or to those who claim through him. That is the position in which the plaintiffs in this case find themselves. A person with no or no proper paper title, such as the defendants herein, in order to succeed, must establish an appropriate degree of physical and conclusive control of the disputed land for the prescribed length of time. In order to determine whether the acts evidencing such control attain the required standard, one must have regard to all the circumstances. One will look for example at the nature of the land and the manner in which land of that nature is commonly used and enjoyed. It was for the defendants to demonstrate that they had been dealing with the land as an occupying owner would have expected to deal with it and that no one else had done so. The defendants (or those through whom they claim) must have shown the intention, in their own names and in their own behalf, to exclude from the land the world at large, including the plaintiffs. Clear and affirmative evidence that the defendants not only had that intention but made such intention clear to the world must be demonstrated. See: Powell v. McFarlane (1977) 38 P & Cr Mere long possession on the part of a defendant may not be sufficient to bar the right and title of the true owner of lands. As important as the length of possession is the character of the possession. Long, continuous and undisturbed possession by a defendant may be equally consistent with adverse possession as with a license emanating from a consensual family arrangement. In this particular case, it seems to me that the defendants have not established that the other family members either discontinued possession of the lands or were forced out of them. It was crucial to the case for the defence that this be established because time could only start running from the date of either of those two occurrences. 19 There is another reason why, as a matter of law, the defendants' case must fail. The pleadings are extremely inadequate. The essence of the Defence is set out in Paragraph 3 where it is stated: "The Defendants admit Paragraph 3 of the Statement of Claim but state that the said lands were given to Joseph Brookes by Joshua Eric Brookes during the lifetime of the latter. Since that time, Joseph Brookes exercised all the acts of possession of the said land from until the date of his death in The Defendants also state that the First and Second Defendants have continued in possession of the said lands since the death of their father, Joseph Brookes". Given what I have stated above, the reference to "acts of possession" instead of acts of ownership was most unfortunate. 20 The pleadings suffer from another serious defect. Order 18 of the Rules of the Supreme Court requires a defendant to plead any relevant statute of limitation "which he alleges makes the [plaintiffs'] claim not maintainable". The defendants here neglected to plead the statute of limitation. 21 This failure to plead the statute of limitation is not an oversight that the court can in the circumstances excuse. Almost the entire substratum of the case for the defendants, as argued in court, rested on issues of adverse possession.

5 Page 5 The defendants were thereby seeking to take advantage of section 6(3) of the Limitation Ordinance, Chapter 45. That Ordinance prohibits the bringing of actions to recover land after the expiration of twelve years from the date on which the right of action accrued. The statute must be specifically invoked by being pleaded by the defendants. Our present system of pleadings has the effect of treating that statute like a barrier in the way of the plaintiff. Parliament offers that barrier to the defendant. It is for the defendant to set up the barrier. If the defendant fails to do so then there is nothing to prevent the plaintiff from charging through and successfully prosecuting his action notwithstanding the lapse of time well beyond twelve years. The defendant must erect that barrier by his pleadings so that a forewarned plaintiff will come to court well prepared to get under, around or over the barrier if he can. The judgment of Mitchell, J. in Tyson v. Tyson is instructive in giving one an appreciation of the need to plead the statute. 22 In all the circumstances I will give judgment for the plaintiffs. I must however say this. The evidence in this case discloses that Joshua Brookes died seised of three parcels of land. It seems to me that all three parcels, and not Garden Lands only, ought to have been administrated for by the plaintiffs. That mattter was however not a live issue on the pleadings and therefore I am not prepared to make a formal order to that effect. I will order that the lands situate at Low Ground Estate known as Garden Lands form part of the estate of Joshua Brookes, deceased and that the defendants are restrained from erecting any building on the same. The plaintiffs will have their costs to be taxed, if not agreed. Adrian D. Saunders High Court Judge