Augustus v Estate of Wendell Gibbons

• Jurisdiction: Bermuda
• Judgment Date: 31 March 2023
• Court: Supreme Court (Bermuda)
• Docket Number: Civil Jurisdiction 2009 No 394

Between:

Marshalle Augustus

Plaintiff

and

Estate of Wendell Augustus

Defendant

[2023] Bda LR 31

Civil Jurisdiction 2009 No 394

In The Supreme Court of Bermuda

Claim for ownership of property — Trespass — Claim for adverse possession

The following cases were referred to in the judgment:

Ramnarace v Lutchman [2001] 1 UKPC 25

JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419

Buckinghamshire CC v Moran [1990] Ch 623

Moulder v Slaughter and Slaughter [2007] Bda LR 41

Morris v Pinches (1969) 212 EG 1141

Ellett-Brown v Tallishire Ltd [1990] Lexis citation 1831

Mr C Rothwell for the Plaintiff

No appearance for the Defendant

JUDGMENT of Mussenden J

Introduction

1. The Plaintiff Ms Augustus is and was at all material times the owner in fee simple of the land and premises situated at 19 Limehouse Lane (“19LL”), Hamilton Parish.

2. The Defendant is the owner in fee simple of 15 Limehouse Lane (“15LL”), Hamilton Parish, which is situated near to 19LL. At the time of the commencement of this litigation on 19 November 2009, the named defendant at that time, Mr Wendell Gibbons (“Wendell”), was alive. He passed away in 2012. I made an order dated 16 December 2021 for the Writ to be amended to name his estate (the “Estate”) as the Defendant.

Limehouse Lane and the Disputed Property

3. Limehouse Lane was formerly known as Claytown and was occupied by the Gibbons family. Mr Evelyn Gibbons (“Evelyn”) purchased properties on Limehouse Lane for himself and for some of his seven children. All of the property lots are in very close proximity. Over time, Evelyn's descendants in the Gibbons clan inherited or acquired various lots on Limehouse Lane.

4. There is one lot of land, 11 Limehouse Lane, (“11LL”) which is the disputed subject matter of this case. 11LL is situated adjacent to 19LL and touches upon 15LL at a point. 11LL has a barn on it (the “Barn”). The dispute arises as both the Plaintiff and the Defendant claim ownership of 11LL.

Background and Pleadings

The Writ and Statement of Claim

5. By a Specially Indorsed Writ of Summons issued on 19 November 2009, the Plaintiff commenced the present action. The Statement of Claim set out that the Defendant entered the premises, commenced construction on a shed on the premises, wrongfully occupied the premises by depositing materials and equipment on the premises and caused or permitted a trespass to the premises and an interference with the Plaintiff's comfort, convenience and quiet enjoyment of her premises.

Relief Sought

6. Thus the Plaintiff sought: (i) a declaratory judgment that there has been a trespass by the Defendant his servants or agents onto her property 11LL; (ii) an injunction restraining the Defendant his servants or agents from trespassing on her premises; (iii) an order that the Defendant remove materials and equipment situated on her premises; and (iv) damages.

The Defence and Counterclaim

7. Wendell filed an affidavit sworn 12 January 2010 in support of an application to set aside an order made on 23 November 2009. He exhibited a draft Defence and Counterclaim which were never filed as part of the proceedings.

The Litigation after 2021

8. It appears that the matter went to sleep from 2011 until January 2020 but really until May 2021 when Cox Hallett Wilkinson (“CHW”) for the Plaintiff, came on the record and proceeded to have the matter set for trial. The Estate did not engage in the proceedings once they had recommenced in 2021. However, counsel for the Plaintiff Mr Rothwell took steps to have two adult sons of Wendell, namely Iman Gibbons (“Iman”) and Kevin Bean-Walls (“Kevin”) served with the Summons for Directions dated 19 November 2021. Process Server Mrs Evernell Davis swore affidavits that she personally served both Iman and Kevin with the Summonses but they did not attend the directions hearing. On 16 December 2021 an Order for Directions was made to advance the proceedings to trial.

9. Thereafter, Mr Rothwell appears to have included Kevin by email in correspondence with the Court and the Notice of Hearing dated 19 December 2022 for a one day trial on 15 March 2023 was issued to Kevin by email. Mr Rothwell also caused Mrs Davis to post on 7 March 2023 a letter from CHW dated 6 March 2023 on the door of 11LL addressed to the Occupier informing them of the proceedings and attaching the Notice of Hearing.

10. The Estate did not file anything in preparation for trial and no counsel ever appeared on its behalf.

Table of Old and New Lot Numbers

11. The Court was provided with a helpful table showing old lot numbers, new Limehouse Lane address numbers and the current owners as set out below. I will use the new Limehouse Lane numbers for simplicity but sometimes it will also be necessary to refer to the old lot numbers.

Old Lot Number	New Limehouse Lane Address Number	Current Owner
“	Referred to in this Judgment as “LLxx
1	15	Estate of Wendell Gibbons
3	17	Glenn Brangman
4	19	Marshalle Augustus
5	5	Estate of Wendell Gibbons
6A	11	Marshalle Augustus (disputed)
6B	9	Percy Gibbons

The Vesting Deeds and Lot Plans

12. The Plaintiff's List of Documents disclosed several vesting deeds and plans as follows:

• i. The 1945 Plan (the “1945 Lot Plan”) which identifies the owners at that time. It shows that:

  • (a) Evelyn owned 19LL (Lot 4) and he owned 11LL and 9LL as Lot 6 which was not yet subdivided into Lots 6A and 6B.

  • (b) Evelyn's daughter Hilda owned 17LL (Lot 3).

  • (c) There was a right of way from the road named Limehouse Lane to 15LL (Lot 1) (the “ROW”) which passed through Evelyn's 19LL (Lot 4) and Hilda's 17LL (Lot 3). The ROW is not in issue in this matter.

• ii. The Vesting Deed dated November 1984 (the “1984 Vesting Deed”) transferred both 19LL (Lot 4) and 11LL (Lot 6A) to three of Evelyn's children, namely Hilda, Clement and Louise. The Lot Plan dated December 1983 (the “1983 Lot Plan”) was a part of it and shows that:

• iii. Lot 6 was now subdivided into 11LL (Lot 6A) and 9LL (Lot 6B).

• iv. Both 19LL (Lot 4) and 11LL (Lot 6A) were now the same parcel of land, thus being owned by Hilda, Clement and Louise.

• v. Two Vesting Deeds and Voluntary Conveyances dated 8 February 2007 (“Glenn's 2007 Conveyances”) which transferred Glenn Brangman's (“Glenn”) 2/3 share (from his grandmother Hilda and from Evelyn's son Clement) in the property described as both 19LL (Lot 4) and 11LL (Lot 6A) to the Plaintiff.

• vi. The Conveyance dated 27 November 2007 (“Frederick's 2007 Conveyance”) which transferred Evelyn's grandson Frederick Gibbons' 1/3 share in the property described as both 19LL (Lot 4) and 11LL (Lot 6A) to the Plaintiff.

• vii. A Capital G Bank Limited Mortgage dated 27 November 2007 for the Plaintiff secured by the Mortgaged Property described as both 19LL (Lot 4) and 11LL (Lot 6A) and referencing Glenn's 2007 Conveyances and Frederick' 2007 Conveyance.

The Trial – Preliminary Points Involving Mr Bean-Walls

13. The matter came on for trial on 15 March 2023. Mr Rothwell provided the Court with an email dated 14 March 2023 that he had received from Kevin along with some attachments. The email from Kevin appears to be a reply email to the Plaintiff's email which had attached the Plaintiff's Skeleton argument.

14. Kevin's email stated as follows:

“Re Augustus versus Randall Gibbons estate. The following are documents (attached) on file at the office of the land valuation as of March 14, 2023. They show the Gibbons estate at all times acted in good faith with lawful documentation with respect to any development at 15 Limehouse Lane, and adjacent vacant lot of land at 11 Limehouse Lane. As these records show all the above-mentioned properties are registered and are legally owned by Mr Gibbons and his heirs. Our wish and our prayer is that Mrs Augustus would reconsider her position with this action and cease it immediately.

Thank you,

Sincerely...