Conrad Potter Claimant/Appellant v Mary Louisa Frett Claimant/Respondent

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: CECIL LEWIS, Ag. C.J.
• Judgment Date: 26 June 1973
• Neutral Citation: VG 1973 CA 3,[1973] ECSC J0626-1
• Docket Number: Civil Appeal No. 9 of 1973
• Date: 26 June 1973

[1973] ECSC J0626-1

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Louisy

Civil Appeal No. 9 of 1973

Between:

Conrad Potter

Claimant/Appellant

and

Mary Louisa Frett

Claimant/Respondent

Mr. J.S. Archibald for Claimant/Appellant

Mr. M. Riegels for Plaintiff/Respondent

CECIL LEWIS, Ag. C.J.

1 This is an appeal from a decision of the Adjudication Officer dated April 11, 1972 in which he purported to give to the respondent a portion of land on which the appellant has been living for some time.

2 It appears from page 5 of the record that the respondent is claiming that the land on which the appellant's house is situate is her property.

3 From the nature of the order which it is proposed to make in these proceedings it will be undesirable to say anything more about the facts.

4 There is a form at page 10 of the record which bears the caption "Dispute Form" and also the words "To be completed by the Demarcation Officer". This form is unsigned and it does not state the nature of the dispute between the parties. Nevertheless Counsel agreed that It would be safe to assume that the dispute had in fact been referred to the Adjudication Officer under section 15 of the Ordinance which reads as follows -

"15. (l) If in any case -

• (a) there is a dispute as to any boundary whether indicated to the Demarcation Officer or demarcated or re-adjusted by him, which the Demarcation Officer is unable to resolve; or

• (b) there are two or more claimants to any interest in land and the Recording Officer is unable to affect agreement between them,

the Demarcation Officer or the Recording Officer as the case may be shall refer the matter to the Adjudication Officer.

(2) The Adjudication Officer shall adjudicate upon and determine any dispute referred to him under subsection (1), having due regard to any law which may be applicable, and shall make and sign a brief record of the proceedings".

5 The appellant was dissatisfied with the Adjudication Officer's decision and has appealed to this Court. The appeal is brought pursuant to section 23 of the Land Adjudication Ordinance, No. 5 of 1970 (hereinafter referred to as the Ordinance) which gives a right of appeal to any person aggrieved by any act, decision or omission of the Adjudication Officer. The Adjudication Officer's decision may be questioned on two grounds, either –

• (a) that it is erroneous in point of law; or

• (b) that he has failed to comply with any procedural requirement of the Ordinance.

6 If on an appeal the Court of Appeal is satisfied that the decision in question is erroneous in point of law or that the interests of the appellant have been substantially prejudiced by failure to comply with the procedural requirements of the Ordinance it may "make such order or substitute for the act, decision or omission of the Adjudication Officer such decision as it may consider fit".

7 The objects of the Ordinance as stated in its Long Title are "to provide for the adjudication of rights and interests in land and for purposes connected therewith and incidental thereto". The scheme of the Ordinance shortly stated is as follows:- By section 3 the Administrator is empowered by order to declare that it is intended to effect the adjudication and registration of rights and interests in land within such area (hereinafter referred to in this judgment as an "adjudication area") as is defined in the said order and the order shall be published for three successive weeks in the Gazette.

8 By subsection (1) of section 4 the Administrator is authorised after publication of the order to appoint an Adjudication Officer for the adjudication area and the latter may in turn appoint such Demarcation, Recording and Survey officers as may be necessary for performing the duties imposed upon them by the Ordinance.

9 Subsection (2) of section 4 places the Adjudication Officer in general charge of the adjudication and he is empowered to issue such general or special directions to the officers whom he has appointed as he may consider necessary, and he may himself perform any of the duties imposed upon these officers by the Ordinance.

10 Subsection (3) of section 4 is a rather important subsection. It provides that the Adjudication Officer "shall be competent to administer oaths and take affidavits in any enquiry made by him and to issue summonses, notices or orders requiring the attendance of such persons or production of such documents as he may consider necessary for carrying out the adjudication."

11 Section 5 authorises the Adjudication Officer to divide the adjudication area into two or more adjudication sections, and by section 6 he is required to prepare a notice in respect of each such adjudication section which shall comply with the requirements of the said section 6. The notice shall contain a declaration that all interests in the land in the adjudication section will be ascertained and recorded. It shall require all persons who claim any interest in land in the adjudication section to make a claim thereto either in person or by agent, within the period, to the person at the place and in the manner specified in the notice. This notice shall also require claimants within the adjudication section to mark or indicate the boundaries of the land claimed in such manner as may be required by the Demarcation Officer who is authorised by subsection (4) of section 4 to enter upon land within an adjudication area for the purpose of demarcating any land therein; and he may also summon any person to give information regarding such land and to point out the boundaries thereof. It will be observed that every person who claims to have an interest in land within an adjudication area is required to submit a claim in relation thereto and section 8(2) provides that he shall attend in person or by agent at the time and place specified in the notice given under section 6 if his presence is required by the Adjudication Officer, the Demarcation Officer or the Recording Officer. The demarcation, recording or other proceeding may continue in such person's absence if he fails to attend either personally or by agent as provided in subsection (3) of section 8.

12 By section 10 not less than seven clear days notice is to be given before the demarcation of any land is to commence and the time and place of the demarcation must be stated in the notice, which shall require every claimant to indicate the boundaries of the land affected by his claim. Section 11 requires the Demarcation Officer to see that the boundaries of every piece of land which is the subject matter of a claim are Indicated or demarcated in accordance with the requirements of the notice issued under section 10. Section 12 also deals with the powers of the Demarcation Officer. He is authorised by subsection (1) (b), thereof "with the consent of the owners concerned to adjust the boundaries of any land in the adjudication section or re-allot the same to ensure the more beneficial occupation thereof or to effect a more suitable sub-division thereof".

13 Section 13 is concerned with the duties of the Survey Officer. He is required to prepare a demarcation map of the adjudication section which shall show every separate parcel of land in the said adjudication section.

14 Section 14 requires the Recording Officer to consider all claims to any interest in land and after such investigation as may be necessary to prepare in accordance with section 18 a record in respect of every parcel of land shown on the demarcation map.

15 Section 16 requires the Recording Officer to prepare an adjudication record and in so doing he must follow the principles of adjudication laid down in this section and also in section 17.

16 Section 18 prescribes the contents of the adjudication record. It provides that it shall consist of a form in respect of each parcel of land and shall contain the matters and things specified in this section. When this form is completed it must be signed by the Recording Officer and in the ease of privately owned land, shall, where possible, include an acknowledgement signed not only by the owner of the parcel of land in question but also by any person recorded as having a right in such land registrable under the Registered Land Ordinance, 1970, that such owner or person as the case may be accepts the adjudication record. After the adjudication record for an adjudication area is completed the Adjudication Officer shall sign and date a certificate to this effect and give notice of the completion thereof and of the place or places where the record and the demarcation map may be inspected.

17 I have earlier in my judgment quoted section 15 of the Ordinance and I will now deal with it more fully and at the same time consider section 20 as both of these sections empower the Adjudication Officer to make decisions on matters which may be referred to him under the said sections.

18 Section 15 relates to disputes. It provides that if there is a dispute as to a boundary whether indicated to the Demarcation Officer or demarcated or re-adjusted by him, which he is unable to resolve, or if there are two or more claimants to any interest in land (as in this case) and the Recording Officer is unable to effect an agreement between them he shall refer the matter to the Adjudication Officer. Subsection 2 provides that the Adjudication Officer shall adjudicate upon and determine any dispute referred to him under subsection (1), "having due regard to any law which may be applicable, and shall make and sign a brief record of the proceedings",

19 Now, since a right of appeal is given by section 23 against a decision of the Adjudication Officer it is undoubtedly the intention of the Legislature to give the right to question his decision in all cases under the Ordinance where he is authorised to determine any issue and this...