Callwood v Callwood

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Hewlett, J.
• Judgment Date: 10 May 1978
• Neutral Citation: VG 1978 HC 3
• Docket Number: No. 6 of 1975
• Date: 10 May 1978

High Court of Justice

Hewlett, J

No. 6 of 1975

Callwood

and

Callwood

Appearances:

Riegels for the plaintiff

McW. Todman for the defendant

Administration of Estates - Letters of Administration — Grant

Facts: Plaintiff appointed administrator of estate of J.C. deceased by United States Court. Plaintiff claimed that deceased had died intestate possessed in fee simple of property in Tortola which defendant had fraudulently caused to be registered in his own name. Plaintiff asked that rectification of the register be made to him in his personal capacity. Defendant contended that plaintiff was not entitled to be registered as proprietor in either a personal or representative capacity because he was not entitled to grant of letters of administration and the grant obtained had been obtained by fraud. Fraud alleged was that plaintiff was not a lawful son and heir of the deceased as deposed to by him on his oath leading to the grant and that plaintiff knew this at the time.

Held: Court satisfied that plaintiff knowingly and fraudulently swore oath for purpose of obtaining the grant to the local estate. Fraud vitiated grant.

Hewlett, J.

1 Ernest Rafael Callwood of New York (hereinafter referred to as the plaintiff) was appointed the administrator of the estate of James Erwin Callwood (hereinafter referred to as the deceased) who died in the U.S.A. on the 7/8/70 by the Surrogate Court of New York in the Country of Nassau on the 30th day of October 1970. He claimed that the deceased died intestate possessed in fee simple of a property in Road Town, Tortola described as Parcel 1 Block 2837E which the defendant had fraudulently caused to be registered in his own name. To support his allegation of fraud, he urged that the defendant bought the land with funds provided by the deceased and yet caused it to be registered in his own name by Deed No., 31/56; that when the deceased discovered what had happened and questioned it, the defendant made a voluntary transfer of the said property to the deceased by Deed No. 308/1970; and that in 1972 after the deceased's death the defendant again claimed the property in Land Adjudication proceedings under the Land Adjudication Ordinance and caused it to be registered again in his name as proprietor.

2 In his defence the defendant has admitted the existence of the above referred to deeds but has averred that he bought the land with his own money, and at his own expense built the first floor, and that because the deceased who was his brother always quarrelled with him over the land he decided to part with it for the sake of peace, but that on his brothers death, unmarried and without lawful issue, he again laid claim to the land and was adjudicated the proprietor thereof by the Land Adjudication Officer.

3 Neither party has indeed adduced any satisfactory evidence as to the origin of the funds for the original purchase of land but the defendant's conduct in making the voluntary transfer to the deceased and in omitting to make mention of the existence of the Deed No. 308/1970 to the Land Adjudication Officer leads me to the clear conclusion that the defendant knowingly sought to deprive the estate of the deceased of the property in question. By laying claim to having built the first floor, it must be taken that he is admitting that he had no beneficial or legal interest in the second floor and yet he caused the whole property to be registered in his name. I find his conduct to be fraudulent.

4 Section 140 of the Registered Land Ordinance provides for rectification of the register in certain circumstances and the presence of fraud is one such circumstance. I hold therefore that there must be a rectification of the register. But this is not the end of the matter. The plaintiff in his statement of claim asked that the rectification be made to him in his representative capacity and rather significantly in his testimony to the court he went further and asked that the rectification be made to him in his personal capacity. But the defendant's answer to that was that the plaintiff was not entitled to be registered as proprietor either in his personal or representative capacity because, not only was he not a person entitled to a grant, but also that the grant which had been made was obtained fraudulently and ought to be revoked. The fraud alleged was that the plaintiff was not a lawful son and heir of the deceased as deposed to by him in his oath leading to the grant of L/A and that he knew at the times as did also his U.S. attorney, that the said oath was false in this material particular, and it is my opinion on this aspect of the case that from the evidence adduced there is no other conclusion of fact that one could reasonably come to. I will advert to this again later in the judgment.

5 The defendant explained that the deceased was survived by two lawful brothers and three lawful sisters and that they were the only persons entitled to the grant and to share in the estate of the deceased, and this evidence has in no way been controverted by the plaintiff, and I accept it. What the plaintiff urged however was that he was appointed administrator of the estate of the...