(1) Ecedro Thomas; (2) Alfred Thomas; (3) Alice Thomas v The Registrar of Lands

• Jurisdiction: British Virgin Islands
• Judge: JOSEPH-OLIVETTI, J.
• Judgment Date: 27 November 2006
• Court: High Court (British Virgin Islands)
• Docket Number: CLAIM NO. BVIHCV2006/0080
• Date: 27 November 2006

IN THE HIGH COURT OF JUSTICE

CLAIM NO. BVIHCV2006/0080

BETWEEN

(1) Ecedro Thomas

(2) Alfred Thomas

(3) Alice Thomas

Claimants/Appellants

and

The Registrar of Lands

Respondent

Appearances:

Mr. Gerard St. C. Farara, Q.C. of Farara Kerins for the appellants

Mr. Arden Warner, Senior Crown Counsel, Attorney General's Chambers for the Respondent

Ms. Mishka Jacobs for the Objectors

(Appeal from the Registrar of Lands under Registered Land Act Cap. 229 — whether Registrar has duty to give reasons for decision even though no such statutory requirement — whether Registrar's failure to give reasons fatal — whether matter should be remitted to Registrar for a re-trial)

JUDGMENT IN CHAMBERS

JOSEPH-OLIVETTI, J.

1 This matter comes by way of appeal from an order of the Registrar of Lands and is brought under the provisions of Section 147(1) of the Registered Land Act Cap. 229 (‘the RLA’). In substance, the Appellants are aggrieved at the Registrar's decision to deny their claim by way of prescription to certain lands at Long Look, East End, Tortola, British Virgin Islands and in particular with his failure to give reasons for his decision.

The Proceedings

2 On 27th February 2004 the Appellants applied to the Registrar to be registered as proprietors of Parcel 67 by prescription pursuant to Section 135(2) of the RLA. This application was supported by the Affidavit and accompanying exhibits of the Appellant, Ecedro Thomas, of 27 ^th February 2004.

3 The Objectors filed affidavits in response of 23 ^rd April and 22 ^nd July, 2005.

4 The Registrar heard the application on 10 ^th August 2005. The Appellants and the Objectors were represented by Counsel. The Registrar at the close of the hearing ordered that written submissions be filed by 12 ^th September, 2005. I see from the Trial Bundle (‘TB’) that this time frame was not complied with strictly as the Appellants filed their submissions on the 18 ^th November 2005 and that of the Objectors is undated. The Registrar handed down his decision under covering letter dated February 28, 2006. See TB Tab 2.

5 The Registrar provided a statement as mandated by s.147 (2) only after the court's order of 11 ^th April. I note that Learned Counsel for the Appellants, Mr. Gerard St. C. Farara Q.C. rather surprisingly takes issue with this statement as being too lengthy. This is rather unusual as normally one challenges such a statement because it is too terse. I do not think that having regard to the provisions of s.147 (2) and to the statement itself that it can be regarded as offensive in any way. I am told by the Crown and that was not challenged that this is the form in use and until such time as the Chief Justice gives further directions as to the content of the statutory statement as he is empowered by s. 149 to do, in my judgment, this challenge is not well founded.

6 The Registrar also provided the notes of the hearing on 11 ^th October long after the time stipulated by the court's order of 11 ^th April and after obtaining extensions. In passing the RLA itself does not require this but it gives the Chief Justice power to regulate the proceedings on appeal. The appeal proceedings, practice and procedure, are thus governed by CPR 2000 Part 60. However Part 60 does not expressly deal with notes of evidence as such. True, Rule 60.7 (1) provides that the appellant must file at the court office ‘a signed copy of any note made by the person presiding at the proceedings in which the decision was made not less than 7 days before the first hearing’ but it does not expressly oblige the decision maker to provide those notes although that duty must be implied. Perhaps this is a matter which should be addressed specifically as the notes of evidence are undoubtedly valuable to an appellate body as is seen from the very fact that the court on giving directions for the hearing of appeals from the Registrar of Lands invariably orders that the notes of evidence be provided. Until such time as further directions are given the Registrar may think it prudent to submit his notes of evidence when he submits the statutory statement or within the time frame stipulated by rule 60.7 (1) rather than await the court's order which only has the effect of delaying the hearing of the appeal.

The Five Grounds of Appeal

7 ‘The Land Registrar gave no reasons for his decision denying the application and accordingly made no proper or acceptable judicial determination of the matter as he was required to do in exercise of his quasi-judicial functions as Registrar of Lands.

8 The decision of the Registrar of Lands is against the weight of the evidence.

9 The decision of the registrar of Lands is wrong in law.

10 The Registrar of Lands ought to have found that the Appellant/Applicants had made out and proven on the evidence adduced, including the cross-examination of witnesses for the other parties to the dispute, a good title to the said land parcel 67 by prescription’.

The Orders Sought

11 ‘The decision of the Registrar of Lands be quashed

12 The court declare that the appellants are the owners of parcel 67 by prescription

13 Alternatively, the Registrar of Lands be directed to properly exercise his duty and a new hearing be commenced’.

The Facts

14 Parcel 67 Block 3427B, Long Look Registration Section is registered in the names of ten persons or their heirs. These include three objectors. It consists of approximately 6 ¹/₂ acres. The Appellants applied to be registered as proprietors in common based on prescription. It appears that the Appellants and all the registered owners including the objectors are all related as they have a common ancestor, Sonny Thomas, deceased who together with Mr. Ecedro Thomas' brother, Alfred, also deceased were the original proprietors of lands of which Parcel 67 formed part. Thus once again this is in reality a family dispute over land.

15 From the nature of the order which I propose to make it will be undesirable to say anything more about the facts.

Is the Registrar's Failure to Give Reasons For His Decision Fatal?

16 This is the gist of the first and primary ground of appeal as put forward by Mr. Farara. If he succeeds then there will be no need to consider his other grounds of appeal and therefore I will follow his lead and consider this ground first.

17 It is common ground that the Registrar did not give any reasons for his decision. In his two page decision of 28 ^th February 2006 he listed the persons who appeared and their legal representatives; he stated the nature of the application as being one for prescription; he listed who the registered owners of the land were; he stated that the application was advertised and that the registered owners were given notice by letter and that several letters had been received; he stated when the matter was heard and in his final paragraph he concluded— ‘Upon review of the application, testimony presented at the hearing and written submissions by counsel, it is HEREBY ORDERED that the application for Prescription be denied’. See Tab 2 p. 2.

18 Mr. Farara submits that the effect of this is that there has been no proper decision in law. The Registrar in carrying out his duties under Section 135(2) of the RLA is performing a quasi-judicial function. He is called upon to adjudicate regarding claims to ownership of land based upon prescription. This function calls for a determination of competing claims to real property and is a judicial function in every respect and the Registrar clearly had a duty to give reasons for his decision. Counsel contends that the Registrar ought to have stated what evidence he accepted and upon what principles of law he based his decision in refusing the application. Accordingly, he submitted that his decision was fundamentally flawed and lacked all necessary transparencies and ought to be set aside and the matter remitted for a new hearing. Counsel relied on Potter v. Frett1; Flannery v. Halifax Estate Agencies Ltd2; Burroughs v. Rampargat Katwaroo; 3R v. Secretary of State for the Home Department ex parte Fayed4 and Marks v. Minister of Home Affairs.5

19 In response, Mr Warner, counsel for the Registrar, contended that clearly the Registrar had adjudicated properly upon the matter, unlike the adjudicating officer in Potter. Further, he had the full benefit of all matters relevant to making his decision, including the relevant law and that consequently the failure to give reasons were not in itself an error of law entitling the court to set aside the decision.

20 Counsel says that there is a conflict of authority as to the strength of the evidence required to transpose a failure to give reasons into an unlawful situation and that that can only happen where the failure to give reasons constitutes a prima facie case of unlawfulness. See De Smith, Woolfe and Jowell Judicial Review of Administrative Action (1995) 5 ^th edn. paras. 9–054–9–056. pp 469–472. Therefore, the Appellants must show that based on all the known facts and circumstances the decision cannot stand and this they are unable to do having regard to the evidence and to the legal submissions which were before the Registrar.

21 Counsel urged that the Registrar, as he had expressly stated in his order, had considered all the evidence before him and that he had before him all the relevant law as appears from the written submissions which were before him. Accordingly, the court could not infer from his failure to give reasons that the Registrar had no good reasons for his decision. On the contrary, his decision was supported by the evidence and was in accordance with the law.

22 Ms. Jacobs on behalf of the interested parties adopted the arguments of the Crown and argued further that the Registrar had no legal duty to give reasons as there is no legislative or common law duty on him to provide reasons and therefore the failure to give reasons was not...