THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
SAINT VINCENT AND THE GRENADINES
HCVHPT2011/0079
IN THE MATTER OF AN APPLICATION BY MILAD SASSINE FOR A DECLARATION OF POSSESSORY TITLE TO LAND
APPLICATION FOR POSSESSORY TITLE
BETWEEN:
MILAD SASSINE APPLICANT
-AND-
LADY GLORIA ANTROBUS RESPONDENT
Appearances: Mr Richard Williams for the Applicant, Mr Joseph Delves and Ms Heidi Badenock for the Respondent.
2015: Jan. 20
Feb. 12
Apr. 1
JUDGMENT
BACKGROUND
[1] Henry, J. (Ag.): The issues in this case concern a subject matter which remains a vexed problem for many Vincentians. It is an intractable reality for which the only panacea is perhaps legislative reform. It involves situations under which an owner of real property is dispossessed of land by someone who obtains a declaration of possessory title of that land on the basis of twelve or more years’ adverse possession. The usual scenario arises where the paper owner moves overseas for an extended period. On his return he discovers that in his absence another individual has occupied his property and after 12 years, on application to the court is granted a declaration that he is the true owner. In other instances, the owner learns that someone else is claiming his land when made aware by notice to that effect in a newspaper or through other means. The instant case fits into the second scenario.
[2] The applicant Mr Milad Sassine is a businessman who bought property in Cane Garden 20 years ago. That property, lot 27 had a common boundary with the disputed land. Mr Sassine seeks a declaration of possessory title of the disputed land on the basis of over twelve years adverse possession. Without making any concessions regarding Lady Antrobus’ claim as owner, he contends that action by the true owner to recover possession from him is statute barred. Lady Gloria Antrobus opposes his application firstly, as the executrix of the Will of Walter Beverly Briggs deceased, secondly as trustee of his estate and thirdly, as one of his heirs. She asserts that her claims as trustee and heir are not statute barred.
ISSUES
[3] The issues are two-fold:-
1. Whether Lady Antrobus’ claim (as executrix, trustee or heir) opposing Mr Sassine’s application for declaration of possessory title is statute barred?
2. Whether Mr Milad Sassine is entitled to a grant of declaration of possessory title of the disputed land?
ANALYSIS
Issue 1 – Is Lady Antrobus’ claim statute barred?
[4] Mr Sassine submits that he has occupied the disputed land for over 12 years without consent or interference from anyone. He contends that no one can seek to recover the land from him based on their prior possession, or that of their predecessor in title, as after 12 years, such action would be statute barred under the Limitation Act . On the other hand, Lady Antrobus submits that her cause of action as sole surviving trustee of Walter Briggs’ estate, against Mr Sassine has neither accrued nor become statute barred. She claims that the disputed lot is the subject matter of a trust for sale under the Will of Walter Beverly Briggs deceased who devised it to her and other beneficiaries under a trust for sale. Further, she argues that the disputed land has never been sold and the beneficiaries of the trust have not received the proceeds of sale. She asserts that consequently, the beneficiaries own a beneficial interest in the property for which a cause of action has not accrued or become statute barred. She argues therefore that her claims as trustee on behalf of the other beneficiaries and as co-beneficiary (i.e. as “heir”) have not accrued nor become barred.
Accrual of Claim as Executrix
[5] The Will of the late Walter Briggs names three persons as executors: Gloria Janet Vera, Edward Alexander Clavier Hughes and Gordon Alexander Marcus Allen. Lady Antrobus has averred that she is also known as “Gloria Janet Vena Briggs and Gloria Janet Vera Briggs. This is not refuted by the Applicant. Probate of the Will was granted to Gloria Janet Vera Briggs in 1982. The court therefore accepts that Lady Antrobus and Gloria Janet Vera Briggs is one and the same person and that she is the executrix.
[6] An executrix stands in the shoes of a testator from the date of his death and is authorized to institute actions on behalf of his estate from that date, including claims to recover possession of land devised under his Will. In her capacity as executrix, Lady Antrobus would have 12 years from the late Walter Briggs’ death within which to bring an action to recover possession of land devised under the Will. Accordingly, her claim as executrix against Mr Sassine would have accrued on the date that he took possession of the disputed land, if he in fact assumed such possession. Her claim would accordingly be statute barred 12 years after continuous possession by Mr Sassine.
Accrual of Claim as Trustee and Heir
[7] The testator by his will disposed of his property under two main clauses. Firstly, he devised his property known as “Hillcrest” to his wife Gloria Janet Vera and secondly:
“3. All the rest residue remainder of my property real and personal wherever situate of which I may die possessed I give devise and bequeath unto my Trustees upon trust to sell call in and convert into money such parts thereof as shall not consist of money and I declare that my Trustees shall hold the proceeds of such sale calling in and conversion and my ready moneys (hereinafter referred to as “my trust fund”) upon the following trusts:…” (bold mine).
The succeeding sub-paragraphs make provision for payment of debts, funeral and other expenses and then list the persons to whom the rest of the proceeds of sale are to be distributed. The testator constituted the three named executors as trustees of the trust. Lady Antrobus has deposed that the other two trustees have since died, leaving her as the sole trustee.
[8] A trust may be created by will. Such a trust must contain a declaration of the trust being created. The declaration must be made by a person who has the legal capacity to do so. Likewise, the trust must be referable to property which can be the subject of a trust; the property and objects of the trust must be certain and administratively workable; and comply with the applicable statutory requirements. The trust purportedly created by the testator complies with those requirements as:
1. he was an adult and competent to create the trust;
2. the property under the trust is real property against which there are ostensibly no liens or other encumbrances;
3. there is no ambiguity or uncertainty regarding the said property or the beneficiaries under the trust, nor incapacity of the beneficiaries to benefit from the trust; and
4. the trust is also workable.
[9] Lady Antrobus has provided details of the trust property which includes the disputed land. I find therefore that the text of clause 3 of the will creates a trust for sale of those lands, of which Lady Antrobus is not only the sole trustee but a beneficiary. The will names 19 beneficiaries. Lady Antrobus has deposed that all except one of them are alive. This means that she is not the only beneficiary under the will. Those provisions of the Limitation Act which deal with trustees and beneficiaries under trusts are therefore applicable to her. The law clearly is that time will not run against a trustee of a trust for sale who is in possession of the subject land if he is not the only person entitled to the land or the proceeds. Similarly, no right of action will accrue to any of the beneficiaries of such a trust. This means that while she has possession of the disputed land as trustee under the will and one of several beneficiaries, Lady Antrobus’ cause of action as trustee and heir does not arise and is not barred against any person seeking to establish title to the land by adverse possession. Her claim is therefore valid as her rights as trustee have not been extinguished. I find therefore that Lady Antrobus’ claim as trustee and heir under the will of Walter Briggs has neither accrued nor become statute barred.
Issue 1 – Is Milad Sassine entitled to a declaration of possessory title?
[10] An applicant for a declaration of possessory title must file an application in the prescribed form. He must also file at least 3 affidavits in support of the application, one deposed to by him and the others by persons who know of his adverse possession. In addition, he is required to submit a copy of a survey plan of the subject land authenticated by the Chief Surveyor. Likewise, an applicant is mandated to publish a notice of his application in two local newspapers, on properties adjoining the subject property, at the Registrar’s office and at the Magistrate’s court in the district in which the land is located. It is also imperative that he serve notices on persons who own lands adjoining the property. Publication and service of the notice must be effected within the mandatory timelines. Non-compliance with any of these mandatory requirements would result in the applicant being denied a declaration of possessory title.
[11] Mr Sassine brought his claim under the Possessory Tiles Act. He has complied with only some of the statutory requirements. He has filed affidavits in support and exhibited the requisite survey plan. He also arranged for the publication of notices at the Registrar’s office and the Magistrate’s court in the district in which the land is located. However, he has produced no evidence that he has complied with the mandatory statutory requirements to publish notices of his application in the newspaper, on adjoining properties and to serve notices on adjoining land owners. His multiple failures in this regard, are fatal to his application for a declaration of possessory title. I am mindful that proceedings under the Possessory Titles Act are not invalidated for informality or irregularity of form or process or for any mistake not affecting the substantial justice of the proceedings. I find that these defaults are not procedural irregularities, formalities, or mistakes which can be corrected, but rather mandatory substantive steps which affect the substantial justice in this case. Because of these failures, notification of the application has not been provided to persons whom Parliament determined must be notified in every case. Accordingly, the application must be dismissed and I so find.
ORDERS
[12] It is accordingly ordered:
- Mr Milad Sassine’s application for a declaration of possessory title of property situated at Cane Garden in the state of Saint Vincent and the Grenadines, measuring 6,813 sq.ft and delineated and described in survey plan G51/63, approved and lodged at the Lands and Survey Department on July 18th, 2011 by Chief Surveyor Keith Francis is dismissed.
- Mr Milad Sassine is to pay Lady Gloria Antrobus’ costs of $7500.00.
[13] I am grateful to counsel for their very helpful submissions.
….…………………………………
Esco L. Henry
HIGH COURT JUDGE (Ag.)