Over 40-years following the death of one of Grenada’s pioneers in the television broadcast industry, the children of Joe Pitt have been squabbling over his property.
High Court judge Raulston Glasgow has been called upon to give a ruling in a civil matter brought before the high court by two of Pitt’s children, Richard and Selwyn Pitt against their elder brother, Brian Pitt on the ownership of a property on Scott Street in St George.
Richard and Selwyn Pitt approached the court to block a bid made by Brian Pitt to get Possessory title of ownership on the grounds that he had occupied the property in keeping with the 12-year requirement of the law.
Justice Glasgow ruled against Brian Pitt and issued the following orders in the case:-
(1). Mr. Brian Pitt is (to) hand over all keys and materials belonging to the property to a representative appointed by the company to receive same;
(2). Mr. Brian Pitt is to hand over all keys and other materials belonging to the company within 30 days of the date of this order;
(3). The defendant (Brian Pitt) is to provide a detailed statement of his dealings with the company from 1st May 2021 to the date of the delivery of the keys and other materials belonging to the company;
As a public service, THE NEW TODAY reproduce the Justice Raulston Glasgow judgment in the case:-
[27]. I agree with Mr Berragan that the concept of a conflict between fiduciary duty and personal interest presupposes an existing fiduciary duty. But it does not follow that it is a pre-requisite of the accountability of a fiduciary that there should have been some improper dealing with the property ‘belonging’ to the party to whom the fiduciary duty is owed, that is to say with trust property.
[28]. In a case such as the present, where a fiduciary has exploited a commercial opportunity for his own benefit, the relevant question, in my judgement, is not whether the party to whom the duty is owed (the company, in the instant case) had some kind of beneficial interest in the opportunity; in my judgement that would be too formalistic and restricted an approach. Rather, the question is simply whether the fiduciary’s exploitation of the opportunity is such as to attract the application of the rule8.” (Bold emphasis and underlining mine)
[42] See also Gordon QC in our Court of Appeal’s decision of AG v Constance Mitcham quoting from Regal (Hastings) Ltd v Gulliver and others10 on the question of the fiduciary obligations of trustees, directors, agents and others in analogous situations –
“The question can be briefly stated to be whether an agent, a director, a trustee or other person in an analogous fiduciary position, when a demand is made upon him by the person to whom he stands in the fiduciary relationship to account for profits acquired by him by reason of his fiduciary position, and by reason of the opportunity and knowledge, or either, resulting from it, is entitled to defeat the claim on any ground save that he made the profits with the knowledge and assent of the other person.
The rule in such cases is compendiously expressed to be that an agent must account for net profits secretly (that is without the knowledge of his principal) acquired by him in the course of his agency. The authorities show how manifold and various are the applications of the rule. It does not depend on fraud or corruption.” (Bold emphasis mine).
[43] His Lordship Johnson QC in Davies v Ford further noted that the court in Bhullar found that even in cases not involving a misapplication of pre-existing property in the strict sense, “the appropriate remedy may nonetheless be a proprietary one.” In Bhullar, a constructive trust was found to be the proper remedy. Such an outcome seems proper in this case. The appropriate answer to Brian Pitt’s actions is to find and I so find that he received the property and held the same on trust for the company. Mr. Justice Johnson QC observed that this result reflects: “the equitable rule that where a fiduciary acquires a benefit in breach of duty, he is to be treated as having acquired the benefit on behalf of his principal, so that it is beneficially owned by the principal.”
[44] For completeness, I must add that there is nothing to the argument that the company could not hold and did not hold the property as its own since it was deemed to be struck off and thus dissolved. Mr. Justice Johnson QC in Davies v Ford stated correctly that: “It is no answer to a claim for breach of duty for a trustee to say that the opportunity he has exploited was not one which could ever have been taken up by the beneficiary.” In any event, I have already alluded to section 484 of the Companies Act which preserved the company’s rights to the property, even though it was struck off and deemed to be dissolved.
[45] There is equally no merit in an argument that the Official Receiver did not act to collect in or preserve the property. On this score, Brian Pitt would have held the property on trust for the property for the company and would have been liable to answer to the Official Receiver.
[46] Much debate centred on the claimants’ failure to join the company as a party to these proceedings. Nothing turns on this issue since it appears that the company by resolution dated 25th January 2018 ratified the claim filed on its behalf and has endorsed the claimants’ prosecution of the same on its behalf.
The Possessory Titles Act basis
Can Brian Pitt claim adverse possession of the property?
[47] The company is the paper title owner of property in this claim as cited at paragraph 34 above. Hector Caesar Luke v Bernard Alexander which was referred to and followed by our Court of Appeal in Marlon Mills v Stacey McKie is instructive. In Hector Caesar, Rawlins J stated:
“The Court will, prima facie, ascribe possession to the paper owner of land or a person who can establish title through the paper owner. The court can only ascribe possession to a person who does not have paper title if that person has factual possession and animus possidendi, the requisite intention to possess the land. Factual or physical possession means a single and conclusive possession, or exclusive physical control of the land. The acts that constitute a sufficient degree of exclusive physical control will depend upon the circumstances, particularly the nature of the land and the manner in which land of that nature is commonly used and enjoyed. The animus possidendi, has been described as the intention to possess the land to the exclusion of all other persons, including the owner with the paper title, so far is reasonable and so far as the process of law will allow17.” (My emphasis)
[48] There is also a statutory definition for “adverse possession” which is elucidated at section 2 of the Possessory Titles Act No. 22 of 2016 as follows – “adverse possession” means factual possession of an exclusive and undisturbed nature of a piece or parcel of land in Grenada for a continuous period not less than twelve years immediately preceding the claim, accompanied by the requisite intention to possess the said land as owner thereof.”
[49] With respect to who can bring an application Chapter 173, an application for declaration of possessory title shall not be made in respect of Crown Lands.
(3) Notwithstanding subsection (1), where a person claims to be in adverse possession of a piece or parcel of land in Grenada and dies in factual possession of the land, an application for declaration of possessory title may be made by a person claiming in the capacity of executor, administrator, trustee or other person in a fiduciary capacity for the estate or for the beneficiaries of the deceased person, as the case may be, but not in breach of the duties as executor, administrator, trustee or fiduciary.
(4) For the avoidance of doubt, an application for declaration of possessory title may be made by a person claiming in the capacity of executor de son tort if, in the opinion of the Court, the person is not in a fiduciary relationship or capacity.” (Underlining supplied)
Requisite intention to possess as owner
[50] Some of the evidence in this case suggests to me that Brian Pitt did not form the requisite intent to hold the property exclusively as his own. These include –
(1) When confronted in 2014 about his dealings with the property, he did not object to but provided accounts to his siblings of the income and expenditure of the property;
(2) Other property belonging to the Pitt family situate at Old Fort was mortgaged with the involvement, knowledge and acquiescence of Brian Pitt to raise funds some of which was used to renovate and maintain the property. The property was not maintained solely by the funds of Brian Pitt;
(3) By letter dated 2nd December 201618, Brian Pitt wrote to Jean Pitt, the executrix of his mother’s estate informing her of his application for possessory title of the property. Brian Pitt made it very clear in that letter to his sister that if his application for possessory title is successful he intended –
(a) to sell the property;
(b) after the sale was completed, to prepare a balance sheet accounting for the expenses and revenue of the property over the 21 years of his occupation; and
(c) to share the balance from the proceeds of sale “in four equal portions for the four siblings”.
[51] The above suggests to me that Brian Pitt-
(1) was prepared to account to his siblings and to his mother’s estate for his use of the property and monies he collected therefrom;
(2) acknowledged his siblings’ beneficial interests in the property; and
(3) did not intend to claim exclusive ownership of the property thereby disinheriting his other siblings.
[52] Instructively, Brian Pitt pleads at paragraph 3 (e)(ii) of his affidavit in support of his application for possessory title that he “was given the keys to the property as one of the children of the deceased majority shareholder of the defunct Company”. He never retreated from that posture thereafter or at trial. In a letter dated 20th March 2007 addressed to Brian Pitt from the then Minister of Legal Affairs, Brian Pitt was advised to ‘[P]rovide affidavits of witnesses attesting to the Pitt’s (sic) ownership of the property…”.
Matters did not get better at trial. During his cross-examination of Brian Pitt, Mr. Ferguson counsel for the claimants asked “you are telling this court in 1995 that your intention was to acquire that property as your own?” Brian Pitt replied “no”. This statement is in direct conflict with the evidence as contained in his affidavit, where he states “I am the absolute owner of the property…having been, either for myself or though others holding under me, been in actual, peaceable, continuous, exclusive, open and undisturbed possession and occupation thereof”.
[53] The totality of the foregoing matters indicates to me that Brian Pitt did not treat with this property with the requisite mental disposition that he was its sole owner. Indeed the evidence leads me to conclude that throughout he viewed this property as family property and so comported himself with respect to his dealings with it.
Was Brian Pitt in continuous and undisturbed factual possession of the property for twelve years prior to the claim?
[54] At trial and under cross-examination, Brian Pitt admitted and I accept that his brother, Selwyn Pitt, upon his return from Canada, began to occupy a section of the property in or around 2007. Selwyn Pitt continues to reside there up to present. Brian Pitt in his report20 entitled “Scott Street Property: Income, expense and debt report” states that “Mr. Selwyn Pitt also resides on the property since 2008. No rent is collected. The last rental value was $1,200.00 per month”. In this report Brian Pitt admits that Selwyn Pitt occupied the property from 2008 to present without paying him any rent. Selwyn was also a shareholder of the company and as such held a beneficial interest in the property. It seems to me that he was entitled to use and enjoy the property as a beneficial owner and he so did. Brian Pitt thereby acknowledged his brother’s beneficial interest in the property.
[55] The common law position on factual possession as stated by Rawlins J in Hector Caesar and by our Court of Appeal in Marlon Mills is recited above. Those authorities instruct that factual possession of property for the purposes of a possessory titles application must be exclusive and undisturbed. Brian Pitt insists that he allowed Selwyn Pitt to occupy a room at the property. But I do not see how this could be the case when Selwyn Pitt as did all of the siblings shared a similar and equal beneficial interest in this property. Indeed there is no evidence to suggest that Selwyn Pitt was occupying the property in any other capacity than as a co-beneficiary. This fact is compounded with the evidence above regarding Brian Pitt’s state of mind in respect of holding the property as owner.
A word about Brian Pitt’s two independent witnesses
[56] McDonald Bullen, a plumber and John Andy Baptiste, a tradesman gave evidence supporting Brian Pitt’s claim to be the sole and exclusive owner of the property. At trial and under cross examination, Mr. Ferguson referred McDonald Bullen to his statement at paragraph 6 of his affidavit. At paragraph 6 of that affidavit, Mr. Bullen states: “I am not aware of anyone ever asking the applicant to account for rents, to acknowledge title in anyone else”. Mr. Ferguson then asked: “what exactly do you mean by that?” Mr. Bullen in his response stated: “well once I worked there the only person that paid me was Brian Pitt and he was the one who cause me to work with him”. This evidence suggests that all he knew about the property was that Brian Pitt paid him and “caused him to work there”. I am of the view that Mr. Bullen did not provide reliable evidence to show that it was probable that Brian Pitt occupied and treated with the property as owner in the sense required by the common law and the Possessory titles Act.
[57] John Andy Baptiste’s evidence is similarly circumstanced. Mr. Baptiste testified under cross-examination by Mr. Ferguson that his only relationship to the property was through maintenance work which he carried out over the years up to present. Therefore, I am of the view that his evidence asserting that Brian Pitt did not acknowledge title to anyone else is also unreliable.
Conclusion
[58] The compendium of the foregoing evidence and findings impels me to conclude that Brian Pitt was not in factual possession of the property as required by the law and he did not possess the requisite mental intent to hold the property as owner. Equally, I conclude that, given his fiduciary duties to the company, he could not and did not hold the property in his personal capacity as it is owner. In fact, I conclude that he held or holds the property on trust for the company which continues to be its lawful owner.
Order
[59] I therefore order that:
(1) Judgment is granted in favour of the claimants;
(2) Brian Pitt’s application for a declaration of possessory title filed on 18th November 2016 is refused;
(3) The Grenada Television Company Limited is entitled to ownership and possession of the property together with building thereon situate at Scott Street in the Town of Saint George’s in the State of Grenada measuring One Thousand Seven Hundred and Seventy-three square feet (1,773 sq. ft.) English Statute Measure;
(4) Mr. Brian Pitt is hand over all keys and materials belonging to the property to a representative appointed by the company to receive same;
(5) Mr. Brian Pitt is to hand over all keys and other materials belonging to the company within 30 days of the date of this order;
(6) The defendant is to provide a detailed statement of his dealings with the company from 1st May 2021 to the date of the delivery of the keys and other materials belonging to the company; and
(7) The defendant is to pay costs to the claimants in the sum of $2,000.00.
Raulston L.A. Glasgow
High Court Judge
By the Court
Registrar