Herbert v Fahie et Al

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Hylton, J.
• Judgment Date: 16 July 1993
• Neutral Citation: KN 1993 HC 20
• Docket Number: No. 57 of 1992
• Date: 16 July 1993

High Court

Hylton, J.

No. 57 of 1992

Herbert

and

Fahie et al

Appearances:

Mr. Theodore Hobson for the plaintiff

Mr. Herman Liburd for the first defendant

Mr. Jeffrey Nisbett for the second defendant

Trespass - Damages — Injunction.

Hylton, J.

1 By Writ filed 21 ^st July, 1992 the plaintiff pleaded as follows:–

1

The first named defendant is a Housewife and resides at Taylor's Pasture, Nevis. 2. The second-named defendant is the owner and operator of a Backhoe and resides at Morning Star, Nevis. 3. That Albert St. Clair Herbert late of Taylor's Pasture in the parish of St. George in the Island of Nevis died intestate on the 13th day of March, 1991, in the aforesaid parish of St. George, Nevis. 4. That at the date of his death as aforesaid the said Albert St. Clair Herbert was seised in fee simple and in possession of a parcel of land situate at the aforementioned Taylor's Pasture measuring 3,234 square feet with a wooden building thereon. 5. That the said parcel of land was Vested in the said Albert St. Clair Herbert by a Vesting Deed dated 22nd February, 1988 and recorded in Liber C.R. Volume 48 Folios 467–470 in the Registry of Deeds of the Nevis Circuit. 6. That the plaintiff is the widow of the said Albert St. Clair Herbert and she was granted Letters of Administration by the Eastern Caribbean Supreme Court on the 25th day of July, 1991 to the Estate of her deceased husband which said Letters of Administration is recorded at Liber Wills Volume B3 Folio 355 out of the Probate Registry of the Nevis Circuit. 7. That on the 30th day of July, 1991, the first named defendant entered upon the land and property which is part of the Estate of the deceased Albert St. Clair Herbert and destroyed the wooden building thereon including the furniture, cooking utensils and china wares with a Backhoe. The first-named defendant also entered upon the said property and gave instructions to the second named defendant as he destroyed the building and its contents referred to above. 9. The second named defendant also knocked out all the bound marks demarcating the land of the deceased Albert St. Clair Herbert with the said Backhoe.

PARTICULARS OF SPECIAL DAMAGE

Value of wooden building destroyed	$12,000.00
Value of Household goods including furniture and China Wares destroyed	5,000.00
Cost of re-implanting bound marks which were removed	500.00

THE PLAINTIFF CLAIMS:–

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Damages. 2. An Injunction against the defendants their servants and agent from trespassing on the aforesaid land and property of the deceased. 3. Any other relief as may be just. 4. Costs”.

2 On 31 ^st July, 1992 the defendants filed Defence and Counterclaim as follows:–

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Paragraphs 1 and 2 of the Statement of Claim arc admitted. 2. The defendants make no admission with regards paragraph 3 of the Statement of Claim. 3. Paragraph 4 of the Statement of Claim is denied. 4. The defendants admit that the said Albert St. Clair Herbert purported to have prepared in his favour a Vesting Deed dated 22nd January, 1988 recorded in Liber CR Volume 48 Folios 467–470 of the register of Deeds in the Nevis Circuit but deny that same vested the said land in the said Albert St. Clair Herbert. The defendants say that the plot of land comprised in the said Vesting Deed was part of the Estate of Ella Matilda Herbert, deceased, late of Taylor's Pasture, Gingerland,.Nevis who died in Nevis on the 6th June, 1962 having executed her last Will in which she devised said land at Taylor's Pasture to five of her children which did not include the said Albert St. Clair Herbert. The said land was vested in Ezekiel Herbert the legal personal representative and one of the named beneficiaries by Vesting Deed dated 20th January, 1988. 5. The defendants admit Paragraph 6 of the Statement of Claim. 6. The first named defendant admits that on the 30th July, 1991 after consultation with the said Ezekiel Herbert she employed the 2nd named defendant to clear the said land and that he did clear the said land with a Backhoe and the 2nd named defendant says that he demolished and removed an old wooden building and placed the debris at a location pointed out to him by the 1st named defendant, who was part owner of the said land. The first named defendant says that neither the land on which the said building stood, nor the building itself was ever the property of the estate of the deceased Albert St. Clair Herbert, although at his request he was permitted by the beneficiaries to reside on the said land during his lifetime only. The building in which he resided belonged to Ernest Herbert, deceased, one of the beneficiaries of the said Ella Matilda Herbert. 7. Paragraph 9 of the statement of Claim is denied. COUNTERCLAIM OF 1ST NAMED DEFENDANT 8. The first named defendant repeats paragraph 1 to 7 of the Defence. 9. The plaintiff claims an interest in the said land of the Estate of Ella Matilda Herbert, deceased and has on occasion abused and threatened the beneficiaries in the use of the said land and threatens unless restrained by his Honourable Court to persist in the same.

AND THE 1ST NAMED DEFENDANT COUNTERCLAIMS:–

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A declaration that the estate of the said Albert St. Clair Herbert is not entitled to any of the said land. 2. An order for cancellation of the said Decd registered in CR Vol. 48 Folios 467–470. 3. An injunction restraining the plaintiff her servants and agents from trespassing on the said land or interfering with the 1st named defendant in her use and enjoyment thereof. 4. Any other relief as may be just. 5. Costs.”

THE BACKGROUND AND THE EVIDENCE

3 The plaintiff was married to the late Albert St. Clair Herbert on 17 ^th May, 1965 and prior to that date she knew him to be living in the house on the land in dispute. There were six (6) children born of the Union and after living together for 18–19 years the plaintiff who is employed as a Laundress at Montpelier Hotel returned to her native Village of Zetlands to care for an elderly ill relative but she maintained that she visited her husband constantly and sometimes stayed at the matrimonial home and sometimes at Zetlands. Mr. Albert St. Clair Herbert died on 13 ^th March, 1991 and the household effects and other possessions were left in the house. The case turns on the Ownership of the land and house and consequently the claim of the plaintiff to administer the same as part. of the estate of her deceased husband.

4 THE EVIDENCE of the plaintiff is further that her late husband owned the land and possessed a Deed registered in the Register of Deeds Exhibit M.H.2 and paid Land and Property Tax prior to his death. After his death she the plaintiff paid the Land and Property Tax for 1992 as per Exhibit M.H.3. This she said she did — by virtue of having obtained Letters of Administration in respect of her deceased husband's estate — See Exhibit M.H.1 which related to the land in dispute. The plaintiff's evidence was further that after her husband's death a son of the Union born 22 ^nd October, 1961,Roosevelt Herbert lived in the house and left clothes etc. therein when he went to Canada as a farm worker prior to 30 ^th July, 1991 on which date the plaintiff received some information from another son. As a result she went to the matrimonial home on the disputed land and noticed the house and contents smashed and piled up on another spot of land. The disputed land and additional land adjoining thereto appears to have originally belonged to the parents of Albert St. Clair Herbert whose late Mother (who apparently survived her husband) according to the evidence of the First Defendant and her witnesses had disposed of her property in her Will without making any provision for the said Albert St. Clair Herbert.

5 The plaintiff valued the house for $12,000.00 and the contents including furniture and wares for $5,000.00 and claimed $500 as the cost of re-implanting boundary marks which were removed

6 Under cross-examination by counsel for the first defendant who is sister-in-law of the plaintiff (being-her late husband's sister) the plaintiff denied that she had left her husband prior to his death – she maintained that she continued to “go and come” as she was caring an elderly relative at Zetlands and when he died she remained at Zetlands to care for her father.

7 Whether or not she had left her husband is immaterial as they were still married at the date of his death. The plaintiff denied that she only returned to the disputed land after her husband died and denied also that she barred a track on land to prevent the defendant from passing to and fro. Trevor Herbert supported his Mother the plaintiff particularly as to the fact that his brother Roosevelt lived in the house on the disputed land after the death of his father. He saw the second defendant dismantling the house on 30 ^th July, 1991 in the presence of the first defendant and her sons and went to Zetlands and reported to his Mother the plaintiff. Under cross-examination he denied that with cutlass in hand he and his two brothers went to the land and abused the first defendant who was obliged to summon the police.

8 THE FIRST DEFENDANT testified that she was one of. the three remaining children of her late parents — (the other two Ezekiel Herbert and Gladys Marshall also testified in support of the first defendant).

9 She testified further that when the husband of the plaintiff returned home from Santo Domingo he lived first in the family house and then moved to the house which belonged to his brother Ernest which was built on land, given to Ernest by their late Mother around 1936. The other houses on the land belonging to herself and Ezekiel were built afterwards. She the first defendant testified further (and this corroborates the plaintiff) that when the plaintiff became the Wife of her late brother Albert, they lived together with the children of the family in the house on the disputed land....