Ida Melvern Thompson Rose v Lionel Whylly aka Lionel Roker

JurisdictionBahamas
JudgeMadam Justice G. Diane Stewart
Judgment Date08 April 2022
CourtSupreme Court (Bahamas)
Docket Number2018/CLE/gen/00891
Between
Ida Melvern Thompson Rose
Plaintiff
and
Lionel Whylly aka Lionel Roker
1 st Defendant
Antonio Allen
2 nd Defendant
Before:

The Hon. Madam Justice G. Diane Stewart

2018/CLE/gen/00891

IN THE SUPREME COURT

COMMON LAW AND EQUITY DIVISION

Appearances:

Mr. Norwood Rolle for the Plaintiff

No appearance by the First Defendant

No participation in proceedings by Second Defendant

1

By a Specially Endorsed Writ of Summons filed 1 st August 2018, the Plaintiff commenced an action in trespass against the Defendants, as a result of their allegedly entering upon property situate Quakoo Street in the Southern District of the Island of New Providence by parking their vehicles thereon and preventing the Plaintiff access.

2

The property is described as:-

“ALL THAT piece parcel or part of a lot being Lot No. 40 in Block 307 situate in Grants Town in the Southern District of the said Island of New Providence bounded on the South by a Public Road known as Quakoo Street and running thereon Fifty (50) feet on the EAST by Lot No. 39 said to be the property on the one Ms. Brown and running thereon One Hundred (100) feet on the NORTH by Lot No. 8 said to be the property of Fred McNeil and running thereon Fifty (50) feet and on the WEST by Lot No. 41 formerly the property of Thomas Higgs and now said to be the property of Sarah Hepburn and running thereon One Hundred (100) feet the said piece parcel or part of a lot of land is more particularly shown on Plan 3690 NP.” (“the Property”)

3

The Second Defendant chose not to participate in the proceedings and did not enter an appearance or file a defence to the action. While the First Defendant filed a Defence on the 10 th October, 2018 (the “Defence”), there was no evidence filed no submissions made on his behalf nor did he appear for trial despite being served with the Order for Case Management which scheduled the date of the trial as evidenced by an Affidavit of Service filed 21 st February 2020.

4

By the Defence, the First Defendant claimed to be the owner in fee simple absolute possession of the Property by virtue of undisturbed open and exclusive possession for more than twelve years.

5

He claimed that in the year 1985, his adopted father, Brian Roker was contracted to erect a house on the Property and that he had become responsible for ensuring that a foundation was erected. Construction did not continue however, because the client, Mr. John Baker (“Mr. Baker”) was unable to obtain clear title to the Property which prevented him from receiving approval for a bank loan.

6

Thereafter, the First Defendant claimed to enjoy undisturbed possession from about the year 2000 up to April 2018 when a fence was erected on the Property. The First Defendant also claimed that the action should be struck out as it was statute barred pursuant to section 16(3) of the Limitation Act which prevents a party from commencing an action for the recovery of land after the expiry of twelve years.

EVIDENCE
7

The Plaintiff averred that her father, Mr. Ulysses Thompson, purchased the Property on or about the 1 st July 1926 from one Marie Louis Mason. She, along with her father, mother and two brothers lived in a wooden house on the Property. On the 31 st January 1962 she married, had seven children and continued to live in the wooden house on the Property until 1966 when she and her family moved into her own home.

8

By a conveyance dated 6 th August 1963, her father conveyed the Property to her brother, Mr. Ulysses Thompson Jr., known as “Junior” (hereinafter referred to as “Junior”). Her father farmed the Property and had planted many fruit trees thereon. When she moved in 1966, Junior and her father moved with her and the Property became vacant but she along with other family members and a neighbor continued to look after it.

9

In either 1973 or 1974 Junior knocked the wooden house down and began building another home on the Property however, only the foundation was completed. He had hired a contractor by the name of Wesley Smith for the job. Junior died on the 29 th June 2006 and had no children. A hurricane in 1979 had destroyed the fruit trees on the Property.

10

In 2004, the Ministry of Housing & National Insurance attempted to acquire the Property for its housing scheme. By a Power of Attorney granted to her dated 1 st April 2004, she had authority to object to the intended acquisition and the Property was excluded from the housing scheme. In 2007 Mr. Jack Adderley started to farm the Property however, she slashed the trees which he had planted and although Mr. Adderley had threatened to bring the police, he never returned.

11

She never knew the First Defendant and she could not recall meeting him. In 2015, she noticed a red car parked on the Property. She would drive pass the Property to check on it. In or about 2016, she noticed cars and a trailer on the Property. After receiving legal advice, she and her daughter Ellen, erected a fence around the Property. The First Defendant then asked permission from her daughter's husband to keep the vehicles and trailer on the Property as he did not have anywhere else to store them.

12

The First Defendant's request was denied and a letter from her attorney was sent to him, asking him to remove his possessions from the Property. He refused to remove them and claimed that only a court order could remove him from the Property. The Plaintiff denied that the First Defendant was on the Property from 2000.

13

The Plaintiff stated that Junior had died suddenly in 2006 and without a will. His estate was not administered and he resided with her at the time of his death.

14

Mr. Clint Williams, the Plaintiffs son-in-law, confirmed that on the 7 th April 2018, he received a Whatsapp message from the First Defendant asking for permission to maintain his trailers on the Property. The conversation went as follows:

“1:07 p.m. Good day bro Williams, This Lionel Roker here from Quakoo St. Could you let the person know who's putting down the fence that they went over almost 10' in the front eastern side of the property before they put their center poles down.

6:01 p.m. Williams could you ask your family if it's ok for my trailers to be there for the time been until they're ready please? Thanks”

15

Mr. Williams stated that he met the First Defendant about twenty years ago and that two years ago he had exchanged numbers with him when he saw him at JBR. He later found out that the cars on the Property belonged to the First Defendant who lived across the street. He told the First Defendant that they had the deed to the Property and that he should consider moving the cars.

16

Mr. Henry Wesley Smith (“Mr. Smith”), averred that he was familiar with Junior and that they would also call him “Lil Ting”. After Junior had spent some time in prison, they became friendly and Junior had told him that he wanted him to build a home. Junior brought him a plan of what he wanted and the foundation was constructed on the Property between 1973 and 1974. Junior liked to gamble however and had lost the property to Mr. John Baker (“Mr. Baker”).

17

Junior had asked him to give Mr. Baker the plan if he ever asked for it. Mr. Baker came to him and got the plan and told him that when he was ready he would contact him to continue the building of the home using the same plan. Mr. Baker eventually died but prior to his death, he never mentioned anything else about continuing the construction of the home on the Property.

18

Ms. Ingrid Rose, the niece of Junior and the daughter of the Plaintiff, averred that she had been informed by her mother that she was born on the Property. She knew the Property well because she lived there from 1963 to 1966. Thereafter, she visited the Property frequently to collect the fruits from the fruit trees that remained after Junior had demolished the home.

19

For as long as she could remember, Junior dealt with the Property up until his death. She did not know about anyone interfering with his occupation of the Property or dealing with it. Junior gave her and her mother a Power of Attorney to deal with the Property when the Ministry of Housing & National Insurance attempted to acquire the Property. As a result, the Property was not acquired by the Government and the Property remained undisturbed until about 2009 when they observed cars being parked thereon.

20

She made enquiries of a neighbor as to who was parking on the Property and was informed that a gentleman in a yellow apartment was parking his vehicles thereon. Her sister had asked her about doing something with the Property for her niece and she did not object to her request.

21

Ms. Rose stated that she met Mr. Baker, who operated a club off of Andros Avenue, on two occasions. Her uncle had built a home in the back of the Plaintiffs yard but once he got sick, the Plaintiff provided him with a bedroom. Her uncle informed her that Mr. Baker was holding the documents for the Property.

22

She asked Junior to get the documents from Mr. Baker but her uncle stated that Mr. Baker would not have given...

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