Garraway v Alexander
| Jurisdiction | Dominica |
| Judge | Stephenson, J. |
| Judgment Date | 11 April 2014 |
| Neutral Citation | DM 2014 HC 16 |
| Docket Number | DOMHCV 459 of 2008 |
| Court | High Court (Dominica) |
| Date | 11 April 2014 |
High Court
Stephenson, J.
DOMHCV 459 of 2008
Mrs. Colleen T Felix- Grant Counsel for the claimant.
Dr. William E. Riviere Counsel for the defendant.
Real Property - Ownership and right to possession — Whether the disputed property belonged to the estate — Whether the defendant has been in undisturbed possession of the land so as to acquire prescriptive rights to same — Claimant seeks declaration as lawful owner — Finding that court preferred the testimony of the claimant — Satisfied on a balance of probabilities that the claimant has shown that she was in possession of the land — Defendant failed to establish that his possession of the property was adverse to the owners or the persons legally entitled to the said land — Defendant has failed in his claim — Counterclaim dismissed — Judgment for the claimant — Claimant lawful owner — Defendant to give up possession.
This case relates to the ownership and right to possession of a portion of land known as #50 Old Street, Roseau, in the Parish of St George, in the Commonwealth of Dominica (“the property).
The central issue in the case at bar is whether the disputed property belonged to the Estate of Isla Garraway or whether the defendant has been in undisturbed possession of the land so as to acquire prescriptive rights to same.
The proceedings were commenced by fixed date claim form dated the 25th November 2008, by the claimant, Anne Marie Garraway as attorney for Robert Garraway, Administrator of the estate of Isla Garraway deceased of 211 Sandbridge Circle, Worthington, Ohio, United States of America against the defendant Errol Alexander for the following relief:
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(a) A declaration that the claimant is the lawful owner of the property known as #50 Old Street, Roseau, in the Parish of St. George, in the Commonwealth of Dominica (The said property');
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(b) An order compelling the defendant to give up possession of the said property and/or restraining him from continuing in possession thereof;
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(c) Damages for trespass;
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(d) Interest at the statutory rate;
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(e) Costs;
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(f) Further and/or other relief.
The claimant bases her claim to the property on the ownership in fee simple of one Isla Garraway (Deceased) who died on the 2nd June 1934.
That the defendant rented the said property in 2000 and paid rent for same up until 3rd September 2002. That the defendant was asked to vacate the property since 2001 and he failed and or refused so to do.
That the defendant has remained in wrongful occupation of the property in spite of attempts by the claimant to have him give up possession thereof.
That as a result of the defendant's continued occupation of the property the claimant who is acting as the lawful attorney for the Robert Garraway the lawful administrator and sole surviving heir of the estate of Isla Garraway has been denied access to the property and has continued suffering loss of use to the property.
In his Defence and Counterclaim dated 4th March 2009, the defendant denies the claimant's ownership and denies that he entered the property as a tenant as claimed at any time or at all. The defendant stated that after Hurricane David the property was badly damaged and abandoned by the then tenants who he knew and thought to be the owners and in 1982 he took possession of the abandoned and badly damaged property of his own accord. That he did repairs to the building bringing it into a habitable condition.
The defendant contends that he remained in continuous, open and undisturbed occupation of the property up until 27th November 2008, when these proceedings were commenced.
The defendant also contends the following:
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i. That he was approached by a member of the claimant's family when he commenced repairs to the building saying that the premises belonged to her family.
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ii. That he was later contacted by the Roseau City Council regarding arrears of municipal rates and taxes which he brought this to the attention of said family member Patricia Inglis who disowned the premises and the arrears were not paid by any member of the family.
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iii. That he paid the arrears of the said rates and taxes.
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iv. That the records at the Roseau Town Council show the owner of the property as recorded since 1961 to be The Estate of Jane Lawrence.
The defendant admits in his defence to making a single rental payment in September 2002 and that in doing so he was of the view that he was making the said payment to the estate of Jane Lawrence.
By way of Counterclaim the defendant is claiming as follows:
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(a) A declaration that Isla Garraway, deceased was not, and her heirs are not the lawful owners of the property known as 50 Old Street, Roseau, Commonwealth of Dominica.
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(b) A declaration that Jane Lawrence deceased was the lawful owner of the said property of the said property
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(c) A declaration that he the defendant is the lawful owner thereof by virtue of the said land being partly in his sole and undisturbed possession and being partly in the sole and undisturbed possession of the aforesaid Estate of Jane Lawrence, continuously for a period of more than 30 years.
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(d) Costs
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(e) Further and other relief
In her Reply and Defence to Counterclaim the claimant joins issue with the defendant on his defence and contends that even if the defendant went into possession on his own accord he acknowledged the claimant's ownership of the property when he paid rent to diverse persons who were the claimant's agents.
The claimant also contends that when the defendant made the payment to Mr. Gene Pestaina he knew that it was to the claimant and not to the estate of Jane Lawrence as claimed.
The claimant contends that the property was not owned by the Estate of Jane Lawrence as claimed by the defendant and that they the claimants have exercised clear acts of ownership of the property from the death of Isla Garraway to the present and asserts that the defendant in his defence has not disclosed any reasonable ground for defending the claim and denies that the defendant is entitled to the relief as sought in the Counterclaim or to any other relief.
The matter proceeded to trial with viva voce evidence being presented by both sides. At the end of the trial each side was ordered to file their written closing submissions with authorities, which was done on the 13th and 16th December 2013 respectively.
Whether the property is owned by the claimant herein or whether the defendant has acquired ownership of the said property by way of adverse possession and should be declared owner of the said property.
This is essentially a question of fact to be ascertained from the evidence adduced at the trial and a consideration of the circumstances which was disclosed by the evidence.
The claimant adduced evidence that she is the duly appointed administratrix of the estate of Robert Garraway the husband of Isla Garraway deceased. Three witnesses were called on behalf of the claimant.
The claimant claims that the property was purchased by Isla Garraway from one Jane Lawrence and that upon and since her death the family has continued in possession and ownership thereof.
That over the years Robert Anthony and Francis Garraway sons of Isla Garraway lived on the said property with one Harrison Peter who was then a tenant.
That through various agents rent was collected from the tenants who occupied the property including from the defendant.
That the defendant was a tenant of the property having moved into the property in or around 1982 for a temporary period whilst his matrimonial home was being built, and in fact he moved to the said matrimonial home upon its completion with his family. That after he and his family moved to their matrimonial (family) home he the defendant continued to occupy the rear of the premises using same as a tyre repair shop which is considered a separate part of the property to the house.
The claimant contends that defendant who also did woodwork carded out his trade at the property and then on the ground floor of the matrimonial home. It is noted that the matrimonial home was up the road from the property.
It is also the claimant's case that the defendant took up residence once again in the property after his marriage broke down in about the year 2000.
That during the period 2001 to 2007 there were a number of letters sent to the defendant by Peter Garraway one of the heirs of the estate of Isla Garraway about the terms of the defendant's occupation of the property and in an attempt to have him regularize same. Those letters also referred to discussions which seemingly took place between the defendant and Mr. Peter Garraway.
In 2002 pursuant to a letter of demand made to him, the defendant paid the sum of EC$1,400 to Mr. Gene Pestaina, Attorney at Law then acting for and on behalf of the claimant as pad payment of rent due and owing to the claimant for his occupation of the property at #50 Old Street. It is noted that the receipt issued by Mr. Pestaina was exhibited and not denied by the defendant.
The claimant has not been in uninterrupted open continuous possession of the property. That the defendant has acknowledged the claimant as owner of the property.
The defendant is the occupant of the property since 1981 after the passage of Hurricane David. The defendant contends that he knew the property to be occupied by the Yankees and after the passage of the Hurricane it was damaged and they left Dominica and went to Antigua.
That when he took up residence he did so without the permission of anyone. That he needed a place to live with his partner (subsequently his wife) and son and that they had no place to go. That he repaired the place and moved in with his family;
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