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Land dispute settlement in Carriacou – Part III

Justice Paul Webster – one of the sitting judges on the OECS Court of Appeal

A land dispute on the sister isle of Carriacou has apparently been settled by the Court of Appeal of the Eastern Caribbean Supreme Court.

The case was brought by Eliza Thompson against another family member Catherine Thompson and stemmed from a decision handed down in the matter by a high court judge.

Eliza Thompson was not satisfied that the judge had ruled against her in the case which involves the estate of one of their parents.

The Court of Appeal Justices who heard the matter were Mario Michel, Mde. Gertel Thom, and Paul Webster while the lawyers involved were Celia Edwards, QC and her daughter, attorney Celine Edwards for the Appellant and Carriacou-born Alban John and Vern Ashby for the Respondent.

As a public service, THE NEW TODAY reproduces in the public interest the judgment from the Justices of the Court of Appeal:-

[26] Section 4(1) of the Real Estate Devolution Act codifies the principle that a personal representative is acting as a trustee and not for his own benefit. It provides that:

“Subject to the powers, rights, duties, and liabilities hereinafter mentioned, the personal representatives of a deceased person shall hold the real estate as trustees for the persons by law beneficially entitled thereto, and those persons shall have the same power of requiring a transfer of real estate as persons beneficially entitled to personal estate have of requiring a transfer of such personal estate.”

[27] The appellant sought to rely on section 32 of the Conveyancing and Law of Property Act, which is set out in full in paragraph 11 above. She argues that, since there is no contrary intention expressed in the deed of gift, the only possible effect of the deed of gift was to convey Joseph’s entire entitlement to her. This too must fail.

[28] Section 32(1) of the Conveyancing and Law of Property Act presupposes that the party doing the conveyance is the grantor. The section applies to persons who have already been vested with an interest in the property, which Joseph was not. The section also speaks to ‘all the estate, right, title, interest, claim and demand which the conveying parties respectively have in, to or on, the property conveyed’, but Joseph purported to convey the entire estate of his mother, when in fact he would only have been entitled to a one-sixth share in the estate. It is clear therefore that section 32 could only have assisted the appellant if the conveyance to her was made by Joseph as the grantor and not as the administrator, because the administrator cannot convey property to a non-heir on the basis of his love and affection for the grantee. He could convey his own property to someone in consideration of his love and affection for the person, but he could only convey the property of the estate as administrator in accordance with the applicable law, contained in the Intestate Estates Act and the Real Estate Devolution Act.

[29] To be clear, the one-sixth share of his mother’s estate to which Joseph was entitled on her intestacy was not vested in him and so he could not convey it to the appellant as grantor. Joseph could not also convey his or any share to the appellant as administrator in consideration of his natural love and affection for her. A person is free to convey his property to another person in consideration of his natural love and affection for that other person or for any other lawful purpose, but he cannot convey the property of an estate of which he is the administrator in consideration of his love and affection for some other person. An administrator is limited to transferring the property of the estate to another person in accordance only with the laws of the country governing the administration of the estates of deceased persons and not in accordance with any feelings which he may have for the other person.

Cross-appeal
[30] On her cross-appeal, the respondent argued that the learned judge erred when he ordered that the appellant was entitled, by virtue of the deed of gift, to a quarter acre or 10,292.18 square feet out of Joseph’s entitlement to one-sixth of his mother’s estate. She submitted that what in fact the appellant was entitled to receive by virtue of the deed of gift was a quarter acre from the one-sixth share of her deceased husband, Robert, in the estate of his mother.

[31] The respondent is correct in her submission that the judge erred when he held that the appellant was entitled to a quarter acre of Joseph’s share in his mother’s estate. Just as he found that the deed of gift was not valid to convey Joseph’s share in his mother’s estate to the appellant, so too the deed of gift was not valid to convey any part of Joseph’s share in his mother’s estate to the appellant. The invalidity of the gift of the land to the appellant is not because of the quantum of land purported to be conveyed to her by the deed, but because of the capacity in which and the basis on which Joseph purported to convey the land to her. Joseph purported to convey the land to the appellant, not in his personal capacity, but in his capacity as administrator of the estate of his mother, and on the basis of his natural love and affection for her (the appellant).

[32] The respondent is not correct, however, in her submission that the judge ought to have found that the deed of gift conveyed to the appellant a quarter acre out of Robert’s share in the estate of his mother. On the same basis that Joseph could not convey any part of his one-sixth share of the estate to the appellant, either as administrator in consideration of his natural love and affection for her, or as grantor when the land was not vested in him, he could also not convey to the appellant all or any part of Robert’s share in the land.

[33] The 5 acres 2 roods and 27.287 poles of land in Carriacou which comprised the estate of Mrs. Thompson had not been partitioned and allocated to the heirs of Mrs. Thompson when Joseph executed the deed of gift. He also never purported to convey to the appellant the share or any part of Robert’s share in the land. In any event, the appellant’s entitlement to any part of her deceased husband’s share in the land would be determined by his will, if he died testate, or by the laws of intestacy, if he died intestate, and the administrator of the estate of Robert’s mother would have no authority as such to determine who are the heirs and entitled to succeed to the estate of his deceased brother, so as to be authorised to convey his brother’s estate or any part of it to his brother’s widow, absent any evidence of letters of administration taken out on Robert’s estate or probate granted of any will of Robert. The learned judge could not therefore have allocated a quarter acre of Robert’s share in his mother’s estate to the appellant as Robert’s widow, nor can this Court do so.

Interpretation of deed of gift
[34] Having regard to the conclusions already arrived at in this judgment, it may not be necessary to address the issue of the judge’s reliance on Joseph’s will in interpreting the deed of gift, but the issue was addressed by both parties, and it may be useful, in the interest of completeness, to at least briefly address it.

[35] The general rule of construction, whether in interpreting a statute, a contract, or other instrument, is to ascertain the intention of the party or parties from the words used in the statute, contract, or other instrument. Lord Neuberger, in the UK Supreme Court decision of Marley v Rawlings, explains it this way:

“When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions.”

[36] In a similar vein, Upjohn LJ in Johnstone v Holdway (quoting Wright J in Callard v Beeney)11 stated that:

“The construction of a deed is always for the court; but, in order to apply its provisions, evidence is in every case admissible of all material facts existing at the time of the execution of the deed, so as to place the court in the situation of the grantor.”

He continued, ‘[i]n construing the deed the court is entitled to have evidence of all material facts at the time of the execution of the deed so as to place the court in the situation of the grantor.’

[37] These cases clearly indicate that it is open to a court in interpreting a deed to have regard to ‘the facts known or assumed by the parties at the time the document was executed’ and that ‘in construing the deed the court is entitled to have evidence of all material facts at the time of the execution of the deed’. There is no authority, however, for the court to use subsequently occurring events to interpret a deed, statute, contract or other instrument. It was, therefore, clearly inappropriate to interpret the deed of gift by reliance on a subsequent document, in this case a will which was executed 19 months after the execution of the document being construed. The judge accordingly erred when he sought to use the fact of Joseph having made a will in February 1998 and the contents of that will as a basis to interpret the deed of gift executed in July 1996 as not intending to convey Joseph’s entire share in the estate of his mother to the appellant. This error by the judge does not, however, impact on my finding here, independently of any will, that the deed of gift was not effective to convey any part of Joseph’s share in the estate of his mother to the appellant.

Costs
[38] The respondent has challenged the costs order made by the learned judge on the basis that the appellant’s claim for the entirety of Mrs. Thompson’s estate failed and so she (the appellant) should have been ordered to pay the respondent’s costs.

[39] This Court is mindful of the fact that a costs order made by a trial judge is made in the exercise of his discretion and that an appellate court will hesitate to interfere with the exercise of discretion by a judge in the court below, except in defined circumstances. This has been clearly expressed in numerous cases from this Court and does not need repetition or elaboration.

[40] The general rule is that costs should follow the event unless there is sufficient reason to the contrary. If the judge is minded to depart from the general rule, he should say why he is doing so. Having considered the issue which was brought before the court below, namely, the appellant’s claim to entitlement of the entire estate of Mrs. Thompson, and the fact that she was unsuccessful in that claim, there does not appear to be any basis for the learned judge to have departed from the general rule. Moreover, the judge did not give a reason why he did not order costs to follow the event. In so doing, the learned judge exceeded the generous ambit within which reasonable disagreement is possible and was clearly or blatantly wrong. The order made by the learned judge in the court below that the parties are to bear their own costs will accordingly be set aside and substituted with an order that the appellant shall pay prescribed costs to the respondent in the court below. In accordance with rule 65.5(2)(b) of the Civil Procedure Rules 2000, the claim will be treated as a claim for $50,000.00 and prescribed costs calculated based on that amount. This would yield a cost award of $7,500.00. I do not, however, think that it is just and fair for the respondent to be awarded the full amount of $7,500.00. I will accordingly discount the award by 30% to reflect the fact that the respondent did not win every argument in the lower court and was not vindicated in this Court on her unsuccessful arguments.

[41] As to costs on this appeal, insofar as the respondent has successfully resisted the appellant’s appeal against the judge’s order denying her Joseph’s entire share in his mother’s estate and that she (the respondent) succeeded in her cross-appeal to the extent that the award of the quarter acre out of Joseph’s share of his mother’s estate will be set aside, will entitle her to a cost award on the appeal. Again though, the respondent will not get the full amount of the costs that would normally be awarded. On the appeal, the respondent pursued an unnecessary and baseless argument to the effect that the appellant should be awarded a one quarter acre of land from Robert’s share in the estate of his mother by virtue of a deed of gift which she (the respondent) contended was invalid, and more so when there is no evidence of what, if any, is the share of the appellant in Robert’s estate. The respondent also persisted with another unnecessary and baseless argument that the trial judge was entitled to interpret the deed of gift by reference to a will executed 19 months after the execution of the deed. I will accordingly award the respondent two thirds of the costs in the court below but discount the costs award by 40% to reflect the fact that the respondent did not prevail on all the issues which he canvassed in the Court of Appeal.

Disposition
[42] In light of the foregoing, I make the following orders:

(1) The appeal is dismissed

(2) The cross-appeal is allowed to the extent that paragraphs 2 and 3 of the order of the learned judge dated 17th November 2020 are set aside and replaced as follows:

“2. The share of Joseph Thompson in the estate of his mother, Petty Thompson, will devolve to his heirs in accordance with the provisions of his will (if he died testate) or the provisions of the Intestate Estates Act (if he died intestate).”

“3. The respondent is awarded prescribed costs in the court below in the amount of $7,500.00, discounted by 30% to reflect the fact that she did not prevail on every argument.”

(3) The respondent is awarded two-thirds of the discounted costs in the court below on the appeal, which amount will itself be discounted by 40%.

(4) For the avoidance of doubt, the mathematical consequence of these costs awards is $5,250.00 cost in the High Court and $2,100.00 in the Court of Appeal, yielding a total costs award to the respondent of $7,350.00.

I concur.
Gertel Thom
Justice of Appeal

I concur.
Paul Webster
Justice of Appeal [Ag.]

By the Court
Chief Registrar

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