Supreme Court
Action No. 63 of 1999
9th December, 2002
AWICH. J.

Mr. E. Arnold for the plaintiff.
Mr. L. Sooknandan for the defendant.

J U D G M E N T

1. NOTES:- Land Law: Registration of title and certificate of title can only be cancelled on proof that registration had been obtained by fraud or mistake:- s. 143 of Registered Land Act, Cap 194. Will: Gift in a will cannot be relied on unless the will had been proved according to probate rules. Two conflicting wills produced. Proof of signature: Two witnesses familiar with signature of another giving conflicting evidence based on observation, conflict cannot be resolved by non-expert observation by a judge, expert evidence necessary.

2. The Plaintiff's Case:

Dr. Francis Gary Longsworth, the plaintiff, came to this Court claiming possession of land, Parcel 164 in Block 16 Caribbean Shores, recorded at the General Registry, in Deeds Book Volume 4 of 1964 at Folio 31. The land is at the address: 6 New Home Area, Haulover Road, Belize City. The plaintiffs' claim was based on a certificate of title No. 1604/89, dated 8th day of June, 1989, exhibit P (FL)1. According to the plaintiff, the court claim became necessary because Mr. Edward Robateau, the defendant, lives on the land, the plaintiff has demanded that Robateau vacate, but he has refused and continues to live on the land. The plaintiff testified that he obtained the land by purchase from Ms. Myrtle Wade, his aunt and common-law wife of the defendant, at $5,000 in 1987. Ms Wade is now deceased. The plaintiff also produced a will dated 28. 4. 1987, exhibit P (WL) 6, said to have been made by Ms. Wade. In the will the whole estate of Ms. Wade was devised and bequeathed to the plaintiff.

3. The Defence:

Mr. Robateau admitted that he has been in possession of the land and continues to live on it. He contended that he is the rightful owner (of the fee simple interest), his right was vested in him by a will dated 25.7.1970, exhibit D(ER)7, of his common law wife, Myrtle Wade, now deceased. He testified that Ms. Wade and him first lived at No. 21 Cleghorn Street, Belize City, land which belonged to him, then in 1980, they moved to No. 6 Haulover Road, New Home Area, the land in question, which belonged to Ms. Wade, and lived there until she died in 1998. The defendant further contended that the certificate of title in the name of the plaintiff was obtained by fraud. Although the defendant counterclaimed that he was entitled to possession of the premises, he did not specifically pray for order under s. 143 of the Registered Land Act, Cap. 194, directing that the registration of the plaintiff as the holder of absolute title and the certificate of title be cancelled. A claim based on constructive trust between husband and wife was never raised.

4. The Issues.
Both parties called witnesses to prove their claims. Both Mr. E. Arnold, learned counsel for the plaintiff, and Mr. L. Sooknandan, learned counsel for the defendant, agreed on the legal effect of registration and issuance of certificate of title. They wholly based their cases on the facts, that is, whether the truth was as the plaintiff presented or as the defendant presented. Appraising evidence so as to determine where the truth or near truth lies is not an easy task. It was my view during the hearing that some witnesses were lying and others were deliberately evasive and non-committal. That made me read through the record of evidence more than five times.

5. Before I make assessment of the evidence I shall mention that I was disappointed by the lack of courtesy shown by Mr. William Longsworth in answering questions put to him by counsel for the defendant. Words such as "nonsense" and "stupid" have no place in court. I did not expect that from the witness, a retiree who had served up to the highest post of Permanent Secretary in the Public Service.

6. Determination

I have to point out, before making findings of facts, that the two wills, one produced by the plaintiff and the other by the defendant, are not relevant to the determination of the question as to who now has the right to the land. The law provides for a specific procedure to prove a will before claims are made based on it. When I put the question to counsel, as to whether they relied on the respective wills in favour of their clients, both counsel agreed that to rely on a will, it had to be probated. That is the law. Secondly, I do not consider that it is relevant to the question of who owns the right to the land, whether it was the plaintiff or the defendant who provided maintenance and paid the medical bills for Ms. Wade. She was entitled in law, to sell or devise the land to anybody irrespective of who provided maintenance and paid medical bills for her. The moral disapproval, if she did not take into account the good deeds, would not count. Further, it does not matter who built the house on the land. It is not the law that improving another's land hinders him from dealing with the land freely. Furthermore, it did not matter how Ms. Wade obtained the land, no claim or counterclaim was based on that.

7. My view was that Ms. Marie Hoare, DW3, a justice of the peace, was a very evasive and non-committal witness contrary to her status. She was not even prepared to admit straight away that she knew Ms. Myrtle Wade and Mr. John Sosa, another justice of the peace, who lived in the same area as she. When asked questions which could expose her lack of candour, Ms. Hoare timely turned round to admit as if she had just been helped to remember. For example, in Court she did not remember Ms. Wade signing document in her presence, but she admitted that she signed an affidavit in which she deposed positively to Ms. Wade signing a transfer in her presence. That was because counsel introduced a would be embarrassing fact that Mr. Sosa was present when Ms. Hoare signed the affidavit.

8. On the evidence as a whole, I was persuaded that Ms. Wade signed exhibit P(FL)2, the memorandum of transfer entitled, "TRANSFER OF LAND," dated 20th April, 1987, before Ms. Marie Hoare, justice of the peace. When she signed, Ms. Wade acted freely of her own volition and when not mentally incapacitated, or at least during her lucid moment if she suffered any mental lapses. Unrefuted evidence suggests there was a sale by Ms. Wade to the plaintiff, perhaps at a price showing appreciation for the assistance rendered by the plaintiff and his father. It is noted, however, that there has been no evidence to suggest that the price was less than that in an honest sale.

9. The transfer was the prerequisite and foundation of the registration and issuance of the land certificate No. 1604/89, in the name of Francis Gary Longsworth. In law that certificate can only be cancelled and the registration in the register corrected, if evidence is made available to show that the registration and certificate had been obtained by fraud or mistake. The law is in s. 143 of the Land Registration Act, Cap. 194. Both counsel are agreed on that.

10. Evidence to prove the defendant's contention that Ms. Wade did not sign the transfer was very weak, almost non-existent. The defendant testified that the signature of Ms. Wade on the transfer was false. That was based on his observation and his assertion that he was familiar with the signature of Ms. Wade. On the other hand, Mr. William Longsworth also testified that he was familiar with the signature of Ms. Wade and that he saw her sign the transfer. The Court cannot resolve that conflict of evidence by mere non-expert observation made by the Court. In the absence of expert evidence, I prefer the evidence given by William Longsworth who took the risk to say that he saw Wade sign in the presence of Ms. Marie Hoare, a justice of the peace, who in turn swore affidavit to that effect before Mr. John Sosa, another justice of the peace.

11. Decision and Orders.
It is my decision to enter judgment for the plaintiff, Dr. Francis Gary Longsworth. He is entitled to possession of the land, Parcel No. 164 in Block 16, Caribbean Shores, Belize City, recorded in Deeds Book Volume 4 of 1964 at Folio 31. Eviction of the defendant, Mr. Edward Robateau, is ordered. The plaintiff informed the Court that he would not insist on damages and costs. No orders for damages and for costs are made.

12. Exhibits to be returned to parties.

13. Mr. Robateau may feel some reservation even at the end of the case. He might consider why in the will that he relies on, the land was not specifically given to him instead of the general gift of all that belonged to the deceased, and why, given the condition of Ms. Wade he described, Ms. Wade did not effect transfer to him before she died. Might it be a question of blood is thicker than water?

14. Pronounced this Friday, 6th day of December, 2002.
At the Supreme Court
Belize City

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