[1] Lucien Callwood v [1] The Registrar of Lands

• Jurisdiction: British Virgin Islands
• Judge: Stollmeyer JA
• Judgment Date: 12 December 2017
• Neutral Citation: [2017] ECSC J1212-2
• Judgment citation (vLex): [2017] ECSC J1212-1
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: BVIHCVAP2012/0008
• Date: 12 December 2017

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario F. Michel Justice of Appeal

The Hon. Mr. Humphrey Stollmeyer Justice of Appeal [Ag.]

BVIHCVAP2012/0008

Between:

[1] Lucien Callwood

[2] Urman Callwood

[3] Gertrude Callwood-Coakley

[4] Wendell Callwood

Appellants

and

[1] The Registrar of Lands

[2] Sheila Callwood-Schulterbrandt

[3] Beatrice Innis Orr

[4] Estate of Sheradina Callwood Alias Geraldine Callwood (Deceased)

[5] Estate of Doris Kelly (Deceased)

[6] Estate of Keturah Callwood (Deceased)

[7] Estate of Theopholous Callwood (Deceased)

Respondents

Appearances:

Mr. Sydney Bennett, QC and with him, Ms. Anthea Smith for the Appellants

Ms. Jo-Ann Williams-Roberts for the Registrar of Lands

Mr. Dave Marshall for Sheila Callwood-Schulterbrandt, the second Respondent

Civil appeal - Application for registration as proprietors of land by prescription - Section 135(1) of the Registered Land Act - Whether appellants' occupation and use of the disputed parcels of land satisfy the requirements of prescriptive ownership - Factual possession - Intention to possess - Role of appellate court in reviewing findings of fact of a lower court - Concurrent findings of fact of lower courts

The appellants are the grandchildren of James Zebedee Callwood (“Zebedee Callwood”) who was the owner of a 65-acre parcel of land known as Parcel 2 Block 1240A Jost Van Dyke Registration Section (“Block 1240A”). He died intestate leaving six children who owned the land as tenants in common in equal shares. After registered land ownership was introduced into the British Virgin Islands in 1974, a land survey exercise was carried out. Subsequently, one of Zebedee Callwood's sons, Zephaniah Callwood, applied for Parcel 2 to be registered in the names of the heirs of Zebedee Callwood. As a result, Parcel 2 was registered in the names of the six children of Zebedee Callwood. In 1977, Zephaniah Callwood died and was survived by his wife and eleven children, including the four appellants.

Parcel 2 was subdivided and the appellants applied to the Registrar of Lands (“the Registrar”) to be registered as proprietors of parcels 25–44 and 48, 49, 50 and 51 of Block 1240A on the basis of prescriptive title, pursuant to section 135(1) of the Registered Land Act, Cap. 229, Revised Laws of the Virgin Islands 1991. The second named respondent, Sheila Callwood-Schulterbrandt is the daughter of Theopholous Callwood, another son of Zebedee Callwood. In the proceedings before the Registrar, she objected to the appellants being registered as proprietors of the relevant parcels on the basis of prescriptive title. The Registrar denied the appellants' application for registration, and found that a cadastral survey and the registration exercise undertaken by the family interrupted any prescriptive rights that might have accrued to Zephaniah Callwood and subsequently, onto the appellants.

The appellants appealed against the Registrar's decision to the High Court. The appellants argued, inter alia, that the Registrar erred in finding that they had failed to establish occupation and possession of the parcels in dispute. The judge allowed their appeal in part, holding that the appellants had been in exclusive, peaceable, open and uninterrupted possession of parcels 25–29 of Block 1240A for a period of twenty years which entitled them to be registered as the proprietors of those parcels of land. However, with respect to the remaining parcels 31–44 and 48–51 of Block 1240A (“the disputed parcels”), the judge affirmed the Registrar's decision and refused registration.

The appellants further appealed to this Court against the decision of the judge refusing registration of the disputed parcels. The appellants argued that: (i) the judge erred in her findings of fact in relation to the appellants' use of the disputed parcels; (ii) the appellants' activities on the disputed parcels should have been considered in a comprehensive manner and not merely separated; and (iii) the totality of the appellants' activities on the disputed parcels satisfy the requirements of prescriptive ownership. The appellants claimed that their occupation and use of the disputed parcels by actual occupation, fencing, animal rearing, and construction of a road demonstrate a sufficient degree of physical custody and control over them. Further, such occupation and use demonstrates the intention to exercise that custody and control for themselves and for their own benefit.

On the other hand, the respondents argued that the appellants' occupation and use of the disputed parcels are equivocal and insufficient to establish an intention to possess the entire 65-acre parcel 2, and consequently does not satisfy the requirements of prescriptive ownership. Further, that there was in any event an intention, if not agreement, expressed at family meetings to subdivide the lands.

Held: dismissing the appeal and ordering that the appellants pay the costs of the respondents, to be assessed in default of agreement, that:

• 1. The function of an appellate court is not to substitute its own views for those of the court below. In the absence of some other identifiable error, such as a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that the trial judge's decision cannot reasonably be explained or justified. Further, it is the well-established practice of the Privy Council not to interfere with concurrent findings of fact of two lower tribunals. The practice is not cast-iron, but it will be departed from only in cases of a most unusual nature. In the instant case, the Registrar was in effect the trial judge or the adjudicator at first instance, and the judge in the High Court was performing an appellate function. Therefore, the settled principle is no less applicable to the appeal before this Court.

  Sandra Juman v The Attorney General of Trinidad & Tobago and Anor [2017] UKPC 3 applied; Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600 applied; Devi v Roy [1946] AC 508 applied; Central Bank of Ecuador v Conticorp SA [2015] UKPC 11 applied.

• 2. The ownership of land may be acquired by peaceable, open and uninterrupted possession without the permission of any person lawfully entitled to such possession for a period of twenty years. There are two elements necessary for legal possession: (i) a sufficient degree of physical custody and control (“factual possession”); and (ii) an intention to exercise such custody and control on one's own behalf and for one's own benefit. Without the requisite intention, in law there can be no possession. To establish factual possession, it must be shown that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.

  Section 135 of the Registered Land Act, Cap.229 of the Revised Laws of the Virgin Islands 1991 applied; JA Pye (Oxford) Ltd v Graham [2001] UKHL 30 applied; Powell v McFarlane (1977) 38 CP & Cr 452 applied.

• 3. Although it is possible that the acts of possession of only part of a parcel of land can be evidence of possession of the whole, the evidence in this case falls short of demonstrating factual possession of the whole of parcel 2. None of the evidence demonstrated that the entirety of parcel 2 was entirely or partly used for cultivation and partly for animal rearing, either intermittently or continuously. The evidence revealed that the extent of the fencing was limited and done for the purpose of keeping the animals in, and not for keeping people out. As it relates to the construction of a road, there is no evidence of the appellants excluding anyone from its use. In any event, the cutting of the road does not advance the appellants' case because doing so did not, and was not shown to, affect adversely the rights of the registered owners. Further, neither the survey nor the family meeting served to stop the period for prescriptive title from running, but weighed against the appellants' case that they were in exclusive, peaceful, open and uninterrupted possession.

  Higgs & Anor v Nassauvian Ltd [1974] UKPC 24 considered; Long v Suva [2007] EWHC 2087 (Ch) applied.

• 4. Taken individually and cumulatively, the appellants' acts of user do not conclusively demonstrate the required intention to possess the parcels of land in question. The appellants have not demonstrated that the judge has made a material error in law, or made a critical finding of fact which has no basis in the evidence, or reflects a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, which would allow this court to interfere with the findings of fact made by her. Therefore, the appellants' appeal against the decision of the judge, refusing registration of the disputed parcels, must fail.

JUDGMENT

[1] Stollmeyer JA[AG.]: This appeal concerns a 65-acre parcel of land known as Parcel 2 Block 1240A Jost Van Dyke Registration Section (“Block 1240A”). On 17^th April 2008, the Registrar of Lands (“the Registrar”) denied the appellants' application to be registered as proprietors by prescription under section 135(1) of the Registered Land Act1 (“the Act”), in relation to parcels 25–44 and 48–51 of Block 1240A. They appealed to the High Court under the provisions of section 147 of the Act and Part 60 of the Civil Procedure Rules 2000.

[2] On 17^th February 2012, Hariprashad-Charles J (to whom I refer for convenience as “the judgeâ€) ordered that the appellants be registered as proprietors of parcels 25,...