A 1" Certificate of Title Issued on 6th December 2004 to Bernadine Forbes in Respect of 1.002 Acre off Land Situate at Zetland's Estate, St John's Parish, Nevis, Recorded in Register Book 42 Folio 449 of the Register of Titles for the Nevis Circuit v a 1st Certificate of Title Issued on 6th June 2006 to Alford Wattley in Respect of 1.001 Acre of Land Situate Atzetland Estate, St John's Parish, Nevis, Recorded in Register Book 44 Folio 161 of the Register of Titles for the Nevis Circuit [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Leigertwood-Octave J,Ianthea Leigertwood-Octave |
| Judgment Date | 02 July 2012 |
| Judgment citation (vLex) | [2012] ECSC J0702-4 |
| Court | High Court (Saint Kitts and Nevis) |
| Docket Number | CLAIM NO.NEVHCV2004/0031 & NEVHCV2005/0159 |
| Date | 02 July 2012 |
IN THE EASTERN CARIBBEAN SUPREME COURT
HIGH COURT OF JUSTICE
CLAIM NO.NEVHCV2004/0031 & NEVHCV2005/0159
In The Matter of the Title By Registration Act Cap. 279
and
Mrs Myma Walwyn with Ms Asure-Dee Liburd for Bernadine Forbes
Mr Jeffrey Nisbett for Alford Wattley
On 25'" February 2004, Bemadine Forbes applied for a First Certificate of Title under section 12(1) (b) of the Title by Registration Act 2 [the Act] in respect of a parcel of land at Zetlands in the parish of St. John in the island of Nevis. Helen Bradley, Martin Cromwell and Emile Wattley along with Bemadine Forbes filed affidavits in support of the application. On 6 th August 2004, Bemadine Forbes filed a supplemental affidavit in support of her application for First Certificate of Title. She then deposed at paragraph 7 that this affidavit was made in support of her application for a First Certificate of Title under section 12(1) (d) of the Act.
On 2 nd December 2005, Alford Wattley [Alford Wattley] pplied for a First Certificate of Title in respect of 1.001+ acre of land situated at Zetland Estate in the parish of St. John in the island of Nevis. His application was accompanied by affidavits in support from himself, James Levi Hill and James Daniel and Joycelyn Matthew but did not state the statutory provision under which it was made.
It is common ground between the parties that the land [the Zetlands land] referred to in both applications is one and the same and that the applicants are first cousins.
It is also common ground that although it was not expressed, Alford Wattley's application also falls under section 12 of the Act, which provides that:
"(I) Land not registered under this Act may be so registered-
a) if the applicant can show a good documentary title thereto in himself and his predecessors in ownership for at least thirty years next before the date of the presentation of the request under this Act;
(b) if notwithstanding that such a documentary title thereto cannot be shown, the Court is satisfied from the deeds or other documents accompanying the request that the applicant has the right to claim the land as owner and that he himself has been in undisturbed possession of the same continuously during the period of twelve years next before the date of the presentation of the request under this Act;
(c) if the applicant has, by descent or by will or deed, acquired a title to the land from a person who would have been entitled himself to have the land registered in accordance with the provisions of paragraph (b) of this subsection;
(d) if the land has been in the sole and undisturbed possession of the applicant alone or in his own right or as executor, administrator or trustee, or partly in the sole and undisturbed possession of the applicant in any such right and partly in the sole and undisturbed possession of any other person through whom he claims, continuously for a period of thirty years next before the date of the presentation of the request under this Act."
Bernadine Forbes' application was granted on December 2004 and a First Certificate of Title was issued in her favour by the Registrar of Titles, which is recorded in Register Book 42 Folio 449 of the Register of Titles.
Alford Wattley's application was also granted and a First Certificated of Title was issued to him and it is recorded in Book 44 Folio 161 of the Register of Titles.
When the matter was brought to the attention of the Registrar of Titles, it was referred to the Court by way of Case Stated in accordance with Sections 137 and 138 of the Act. The Court ordered that the matter proceed to trial as if the Certificates of Title had not been issued to Bemadine Forbes and Alford Wattley. Supplemental affidavits were to be filed and all affidavits were to be treated as examination in chief.
The court must now consider and make a determination on the competing claims. Affidavit evidence formed the core of the evidence but one deponent, Beatha Lipscomb, who resides in the United States, was cross examined by way of video conferencing.
Both Bemadine Forbes and Alford Wattley have based their claims of ownership of the Zetlands land on their possession of the property.
Bemadine Forbes' claim to possession begins with her aunt Melvina Wattley. Melvina Wattley owned the Zetlands land, having purchased it from York Wilkin in 1935. The purchase is recorded as Deed No. 2479 in Liber C.R. Volume 20 Folios 73–78 in the Register of Deeds. The evidence from Melvina's daughter, Beatha Lipscomb, was that Melvina had bought the Zetlands because it was a suitable residence for her mother Eliza Wattley.
Bemadine Forbes deposed that she was bom in 1934 and she lived on the land from childhood until she left for England in 195 8. Other persons including her grandmother Eliza Wattley, her cousin Alford Wattley and his mother Hilda Wattley, also lived on the land. Melvina Wattley had asked Hilda Wattley to stay there and take care of their mother, according to Beatha Lipscomb. Eliza Wattley lived on the land until her death in 1966.
Before Bemadine Forbes left for England, Melvina Wattley had migrated to the United States and Alford Wattley had moved to live in St. Kitts. He left in the 1950's never to live on the Zetlands land again. Hilda Wattley went to live with Melvina Wattley in 1976 and returned to live in St. Kitts with her son Alford Wattley in 1979.
According to Beatha Lipscomb, after Melvina Wattley migrated she had visited Eliza Wattley at the Zetlands land, as did Beatha during summers in the 1950's.
In her first affidavit, Bemadine Forbes claimed that her aunt Melvina and her daughter had sold her the Zetlands, in her supplemental affidavit she indicated that this was a typographical error and Melvina Wattley had in fact given it to her in 1969 because she had recognized her dedication to her grandmother, Melvina's mother. As her mother had died she wanted to give the Zetlands land to Bernadette. She did not however execute a Deed of Conveyance. In her third affidavit, she said it was "in or about the 1970's" that Melvina had given her the Zetlands land.
She also referred to 1969 and "mid-70's" as the dates that she put her brother Martin Cromwell in charge of the maintenance and the upkeep of the Zetlands land and he had consistently maintained and cleaned the land. He restored the dwelling house on the land, which was previously the family house. He had been renting out the land and accounting to her for all rents and profits. He had assumed responsibility for the property even when Hilda was alive. In 1985, he began paying the property taxes and Bemadine Forbes exhibited tax receipts from 1990 to 2006.
Beatha Lipscomb herself stated that her mother Melvina had always made it clear that Bemadine Forbes should get the property because she had taken care of her grandmother.
On 7 th February 2000, Bemadine Forbes conveyed the property to herself by a Vesting Deed recorded in Liber C.R. Volume 62 Folios 1138 to 1141 of the Register of Deeds for the Nevis Circuit. In the Vesting Deed, Bemadine Forbes stated that she had been in possession of the Zetlands as owner "for a period of upwards of thirty years".
Bemadine Forbes' evidence that she had lived on the land as a girl with her grandmother and other relatives until she left for England in 1958, was supported by her cousin Helen Bradley, who is her contemporary. When Bemadine Forbes went to live in England, her grandmother continued to live on the land. Helen Bradley recalled Bemadine Forbes returning to Nevis for a visit in 1969. Her brother Martin Cromwell also recalled that visit. He knew that in the 1970's, Bemadine Forbes'husband looked after the land and that one Mr. Powell and Rohan Liburd cleaned it on behalf of his sister. Mr. Powell sold the fruits from the land and the money used to pay the property tax.
Around 1989, Martin Cromwell rebuilt the house on the land at his sister's requested and rented it out. At the date of his affidavit, which was 2 nd February 2004, Martin Cromwell was still in charge of the Zetlands land on behalf of Bemadine Forbes. Emile Wattley, another cousin basically restated Mr. Cromwell's role over the years.
Mr. Theodore Hobson, Barrister at Law and Solicitor, deposed that in 1985, Bemadine Forbes gave him certain instructions regarding the Zetlands land. He confirmed that Beatha Lipscomb had given him instructions to prepare a Power of Attorney to transfer the Zetlands land to Bemadine Forbes. The Power of Attorney was prepared and executed sometime in 1990. In 2000, he prepared a Vesting Deed for Bemadine Forbes in relation to the Zetland land.
Alford Wattley's claim of ownership based on possession begins with his mother, Hilda Wattley. He deposed that she was in possession of the Zetlands land as owner for a period of over 30 years.
She lived in a partly wooden and partly concrete house on the land. She cultivated the land, growing crops such as vegetables, potato vines, peas, cassava and yams. When she harvested the crops, they were consumed by her household. She stopped cultivating the land in the late 1970's, when she was no longer able to continue.
Hilda Wattley died intestate on 16 th...
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