Dessuit et Al v Farrington
| Jurisdiction | British Virgin Islands |
| Judge | Bishop, J. |
| Judgment Date | 21 July 1994 |
| Neutral Citation | VG 1994 HC 16 |
| Docket Number | 51 of 1990 |
| Court | High Court (British Virgin Islands) |
| Date | 21 July 1994 |
High Court
Bishop, J.
51 of 1990
Mr. L. Hunte for the plaintiffs
Mr. J.S. Archibald, Q.C and Mr. S. Bennett for the defendant
Real property - Recovery of possession — Whether plaintiffs stood by while defendant expended money on building — Evidence pointed to permission to live on the premises but not encouragement — Defendants to account to plaintiff for rents and profits.
In a writ of summons filed on the 10th April, 1990 the plaintiffs claimed against the defendant, an order that: (i) she vacate and deliver up to them peaceable possession of the land described in the land register as Block 2837D Parcel 40 of the Road Town Registration Section, together with the buildings thereon, (ii) she account for all income received by her, her servants or agents “as rents or profits howsoever derived and received” by her through her “use and/or occupation” of the said property, (iii) she be restrained, whether by herself, her servants or agents or otherwise from entering on or occupying the property, and (iv) she pay the plaintiff's costs of the action. The writ was served on the defendant personally on the 18th April, 1990, and appearance was not entered until 12th June, 1990, a day after the statement of claim was served, and filed — notwithstanding the usual command on the face of the writ that the defendant cause an appearance to be entered for her within eight days after service of the writ, i.e. within eight days after 18th April, 1990.
Despite the relevant rule of the Rules of Supreme Court 1970, the defendant's solicitors did not file a defence and counterclaim until 17th October, 1990, or some four months after service of the statement of claim on the defendant. There was nothing on the record to indicate that leave was granted to serve the pleading when it was served (Order 18, rr. 1 and 2); nor did counsel advise the court that there was such leave or consent to do so.
The plaintiffs' solicitors also failed to comply with the relevant rule (Order 18, r.3) for service of a defence to the counterclaim. That pleading was filed on the 20th November, 1990, though there was no clear statement of its service.
A joinder of issue “in respect of the defendant's defence” was filed on 27th December, 1990 by the plaintiffs' solicitors.
In several previous judgments I have commented on the failure of solicitors to obey rules and orders of the courts. I have no doubt that such failure contributed in many cases to the long intervals between the filing of a writ or originating summons and the setting down of the matters for trial. On this occasion, I shall say no more than express the hope that my observations have not fallen on deaf ears and that it is now clearly appreciated that rules and orders are meant to be honoured and obeyed, especially when those orders are made by a court. In Caribbean General Insurance Ltd. v. Frizzell Insurance Brokers Ltd. reported in the Times newspaper of 4th November, 1993, Lord Justice Leggatt sitting in the Court of Appeal said that Mr. Patrick Bennett Q.C. sitting as a deputy High Court judge in December 1992, “having found a scandalous lack of application by the plaintiffs, had erred in failing to consider how to treat the persistent disregard of orders by the court”; and he pointed out that in that case, “the combination of repeated failure and absence of excuse by the plaintiffs together with prejudice to the defendants compelled the court to conclude that the judge had erred in the exercise of his discretion.”
As a result of rulings made by me in this case on 28th September, 1993 and 25th April, 1994, the statement of claim has remained in its original form save for a relatively minor amendment, while the defence and counterclaim has been amended. The defence to the counterclaim has not been altered.
It is appropriate to state here the respective cases as set out in the pleadings that are relevant.
Marjorie Dessuit and Modesta Browne have alleged that as owners, in addition to being registered (a) they “inherited” Parcel 40 with 3 buildings thereon, from their mother Terrecita Vanterpool, who died intestate on the 7th September, 1981; (b) at he time of and after their mother's death, Lola Farrington, their late brother's wife was and has been in occupation of the land and buildings (“the premises”); (c) Lola Farrington has never paid rent to them for occupying the premises; (d) she has used part of the premises as a restaurant and night club, she has rented part to tenants and she has lived in the remaining part; (e) she has appropriated the rents and profits to her own use and benefit. The plaintiffs have alleged also that their solicitors requested the defendant, by letter dated 8th March, 1990, to quit and deliver up peaceable possession to them, but she has not done so.
Lola Farrington's case is: Yes, Terrecita Vanterpool died intestate on September 7, 1981, but these plaintiffs did not inherit the premises from their mother. She did not assert in her pleading who, if anyone else, inherited the premises at all. She “admitted” that her late husband (and brother of the plaintiffs) occupied the premises at the time of their mother's death and afterwards, that she has never paid rent to the plaintiffs for occupying the premises, that she rented out part of the said premises, used part as a restaurant and night club, and lived in a part. She also admitted that she collected and kept all the rents and profits obtained and that she has appropriated such rents and profits to her own use and benefit. In so far as concerned the letter of 8th March, 1990 which the plaintiffs stated was written on their behalf by their solicitors, Lola Farrington made no admission in her pleading. It must be pointed out that at the trial learned counsel for the defendant readily handed up the original letter and it was admitted as evidence. It was dated as alleged, it was written by solicitors acting on behalf of the plaintiffs herein, and it stated inter alia “This letter is a formal demand that you cease forthwith to collect any further rents from the tenants and that you quit the property and deliver up a peaceable possession of it not later than Friday 30th March, 1990 …” I find it difficult to understand why the defence was pleaded as it was rather than admit receipt of the letter and that it stated what was alleged, particularly when the original was in the hands of the defendant's solicitors.
It was also the case for Lola Farrington, according to the pleading that she “has been in peaceable, open and uninterrupted possession and occupation of Parcel 40 to the exclusion of the plaintiffs or any person through whom they claim, for a period upwards of 20 years prior to the issue of the writ …” and further that for the said period she has not paid any rent to the plaintiffs or any person through whom they claim. Consequently, according to the pleading, she is entitled by virtue of section 28 (g) of the Registered Land Act 1970 to an overriding interest in Parcel 40 without the same being noted on the land register. Under the head “Particulars”, at paragraph 7 of the defence and counterclaim in which there is the assertion of her entitlement under section 28(g), it is stated thus: “the right of the defendant in actual occupation of Parcel 40 and receipt of the rents and profits thereof since early 1964.”
The counterclaim alleged additionally that Lola Farrington and the plaintiffs' brother, Offernell, lived as man and wife in a common law relationship from 1962 continuously until 1975 when they were lawfully married. Thereafter they lived together until he died on 4th June, 1986: that from 1962 to 1986 they were business partners. Paragraph 11 alleged that in 1964 she and the plaintiffs' brother “entered into peaceable open and exclusive joint possession of Parcel 40 without the permission or objection of any person, and there remained in exclusive joint possession continuously until his death … and thereafter (she) the defendant remained in sole peaceable exclusive possession of Parcel 40 until the present time.” Apart from what seemed to be a decree of tautology, it may be noted that whereas “open” possession was alleged when referring to the defendant and the plaintiffs' brother jointly the paragraph excluded a claim to “open” possession by her after his death. The defence alleged that she was in peaceable open and uninterrupted possession and occupation of Parcel 40, exclusively for upward of 20 years prior to April 1990. Paragraphs 6(2) and (3) and 7 of the defence made no assertion of “joint” possession at any time, as did paragraph 11 of the counterclaim. So that when the assertions in the defence are read alongside those of the counterclaim, it may fairly be said that they were not unequivocal.
The counterclaim alleged also that neither the plaintiffs nor their mother, nor anyone else shared possession of Parcel 40 with the defendant and the plaintiffs' brother between 1964 and June 1986, or with her after June 1986. There were the further allegations that between 1964 and 1986, the defendant and Offernell spent in excess of $100,000.00 each in construction of “several buildings an Parcel 40, including a large two storey re-inforced concrete residential and commercial building”, valued more than 300,000.00, and that the work was done without any claim or any protest from the plaintiffs or anyone through whom they claim. The rents and profits were enjoyed by the defendant and Offernell up to the date of his death and thereafter by her alone. As amended the counterclaim sought a declaration that Lola Farrington is entitled to an overriding interest in Parcel 40 under section 28(g) of the Registered Land Act 1970.
Each of the plaintiffs and three female witnesses gave evidence in support of the plaintiffs' case as pleaded. The defendant...
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