Clement Donovan v Adina Whitrod

• Jurisdiction: British Virgin Islands
• Judge: Thom JA
• Judgment Date: 04 June 2021
• Neutral Citation: VG 2021 CA 15
• Docket Number: BVIHCVAP2020/0003
• Court: Court of Appeal (British Virgin Islands)

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.]

BVIHCVAP2020/0003

Between:

Clement Donovan

(Attorney for Constance I. Hovis Personal Representative of Edmund Gregory Haig Donovan)

Appellant

and

[1] Adina Whitrod

[2] Martin Whitrod

Respondents

Appearances:

Mr. Lewis Hunte, QC with him Mr. Paul Edwards for the Appellant

Ms. Marie-Lou Creque for the Respondents

Civil appeal — Interpretation of instrument of conveyance — Whether learned judge misdirected herself as to the nature of the appellant's claim — Whether learned judge applied correct legal principles in interpreting instrument — Admissibility of extrinsic evidence — Extrinsic evidence is not admissible to determine the intention of the parties save for an action for rectification — Instrument to be read as a whole — Plain meaning of the language in an instrument does not lead to an absurdity — Section 100 of Registered Land Ordinance — Requirement to state in the instrument whether persons are joint proprietors or proprietors in common

Winston Herbert Donovan (“Winston”), Albert French Donovan (“Albert”), Edmund Gregory Eric Haig Donovan (“Eric”), and Adina Melvina Donovan (“Adina”) were siblings and the registered owners in equal shares, of a parcel of land (“the Property”). There are two houses situated on the Property. A house painted pink which was occupied by Albert and a house painted blue which was occupied by Eric and Adina.

Winston was the first sibling to pass away, leaving no spouse or issue. In 2000, the surviving siblings, Albert, Eric and Adina, agreed that Albert would divest himself of his interest in the Property. To do this, they engaged a non-lawyer who prepared an instrument of conveyance entitled ‘TRANSFER OF UNDIVIDED SHARE’ (“the Instrument”). This was executed and was subsequently registered at the Land Registry. The Instrument stated that Albert agreed to transfer his share to his daughter Adina Whitrod, the first respondent, while Eric and Adina agreed to hold their shares as joint proprietors. There was also a declaration at the end of the Instrument, that stated that Adina Whitrod, Eric, and Adina, held the Property as joint proprietors.

In 2001, Eric executed his Will and purported to dispose of the shares in the Property held by himself and Adina, who at this time, was still alive. Both Eric and Adina are now deceased. After their death, Adina Whitrod transferred the entire Property to herself and her husband Martin Whitrod, the second respondent, in equal shares.

Aggrieved, the appellant, who is the representative of the estate of Eric, instituted proceedings in 2017, in the lower court, in which he sought several reliefs including: (i) a declaration that based on the interpretation of the Instrument Adina Whitrod was not entitled to the Property; (ii) the rectification of the Land Register; (iii) an injunction; (iv) an order that the respondents pay to the appellant's lawyer, all sums collected as rent with respect to the Property; and (v) costs. The respondents resisted this claim, arguing that there was no inconsistency or ambiguity in the wording of the Instrument. The learned judge having heard the evidence and submissions found that the provisions of the Instrument were not irreconcilable, and that the appellant had failed to prove that the common intention of the parties was different than as stated in the Instrument. Having so found, the learned judge dismissed the claim and awarded costs to the respondents.

The appellant being dissatisfied with the learned judge's decision has appealed to this Court, relying on five grounds of appeal. The main issues that arise for determination before this Court are: (i) whether the learned judge misdirected herself as to the nature of the appellant's claim; and (ii) whether the learned judge applied the correct legal principles in interpreting the Instrument.

Held: dismissing the appeal; and ordering that each party bear their own costs, that:

• 1. A review of the claim clearly shows that the learned judge did not identify the main issue in the claim when she purported to identify the issues for determination in her judgment. However, the learned judge did in fact address the main issue, which was the interpretation of the Instrument. While the learned judge placed much emphasis on the issue of rectification, in the process of determining whether there should be rectification, the judge did interpret the Instrument, finding the provisions, including the declaration, to be reconcilable, and that there was no need to make any determination in relation to rectification. Accordingly, the learned judge did not misdirect herself as to the nature of the appellant's claim.

• 2. Extrinsic evidence is not admissible to determine the intention of the parties, save for an action for rectification. The intention of the parties is to be determined from the document itself, when read in its entirety having regard to the factual matrix. The evidence of Adina Whitrod, which the learned judge took into consideration, went beyond evidence relating to the factual matrix. The evidence related to the subjective intention of the parties to the Instrument. This evidence, being extrinsic evidence, was clearly inadmissible in interpreting the Instrument. In so doing, the learned judge erred.

  Investors Compensation Scheme Ltd v West Bromwich Building Society [1999] All ER (D) 23 applied; Cherry Tree Investments Ltd v Landmain Ltd [2013] 2 WLR 481 applied; Prenn v Simmonds (1971) 1 WLR 1381 considered; Reardon Smith Line Ltd v Yngvar Hansen-Tangen and Sanko SS & Co Ltd [1976] 1 WLR 989 considered; Irnham v Child 1 Bro C C 93 considered.

• 3. The approach of the court is to apply general principles in the interpretation of documents irrespective of the nature of the document. As it relates to instruments conveying property, the court must have regard to the instrument as a whole, including any plan which forms part of it. The court has no power to improve upon the instrument which it is called upon to construe. When the Instrument is read as a whole, it is pellucid that Albert was desirous of giving his interest in the Property, along with the newly built house where he resided, to his daughter Adina Whitrod, while the other two siblings agreed to continue to live in the blue house and hold their interest jointly. Further, where land is held by more than one person, section 100 of the Registered Land Ordinance requires that it must be stated in the instrument whether the persons are joint proprietors or proprietors in common. If they are proprietors in common, the share of each party must be stated. The declaration made by Adina Whitrod, Eric and Adina, which they executed before a Notary Public, states very clearly that they hold the Property as joint proprietors. The provisions of the Instrument are not irreconcilable and the plain meaning of the words of the Instrument do not lead to an absurd result. It therefore follows that, in so far, as the learned judge admitted the evidence of Adina Whitrod to ascertain the intentions of the parties, the learned judge was not correct in her application of the principles of interpretation of an instrument of conveyance, albeit the interpretation remains the same as found by the learned judge.

  Lovering and another v Atkinson and others [2020] UKPC 14 applied; in Re Moon, ex parte Dawes (1886) 17 Q.B.D 275 considered; Attorney General of St. Lucia v River Doree Holdings Ltd [2017] UKPC 39 considered; Attorney General of Belize and others v Belize Telecom Ltd and another [2009] 1 WLR 1988 applied; Section 100 of the Registered Land Ordinance Cap 229 of the Revised Laws of the Virgin Islands applied.

• 4. Section 100 of the Registered Land Ordinance simply requires parties to a transfer to indicate whether the parties are joint proprietors or proprietors in common. If they fail to do so, this does not invalidate the transfer document but rather they would be held to hold the property as proprietors in common. When the judgment of the learned judge is read in context, it is apparent that the learned judge was simply stating that in the absence of specific shares, and where there is a declaration that the parties hold as joint proprietors, then the parties hold as joint proprietors. The learned judge was not seeking to state a principle of law that where no specific shares are ascribed to parties, a proprietorship in common does not arise. The learned judge therefore did not err in construing the effect of section 100 of the Registered Land Ordinance.

  Section 100 of the Registered Land Ordinance Cap 229 of the Revised Laws of the Virgin Islands applied.

Introduction

Thom JA

1 This appeal concerns the interpretation of an instrument of conveyance.

Background

2 Winston Herbert Donovan (“Winston”), Albert French Donovan (“Albert”), Edmund Gregory Eric Haig Donovan (“Eric”), and Adina Melvina Donovan (“Adina”) were siblings. They are all now deceased. They were the registered owners in equal shares of a parcel of land registered in the Land Registry as Block 2837 F Parcel 39 (“the Property”). It is common ground that they were not joint proprietors. There are two houses situated on the Property. The house, painted pink and referred to by the parties as “the pink house”, was occupied by Albert. The other house which was painted blue and referred to by the parties as “the blue house” was occupied by Eric and Adina.

3 Winston died first, leaving no spouse or issue and around 2000, Albert, Eric and Adina agreed that Albert would divest himself of his interest in the Property. They engaged a non-lawyer to prepare the documentation to give effect to their decision. An instrument of conveyance was prepared entitled ‘TRANSFER OF UNDIVIDED...