Ecedro Thomas the lawful Attorney for Alice Thomas and Alphonso Thomas, the Administrators of the Estate of Caesar Augustus Thomas, deceased Appellant v Augustine Stoutt and Grethel Stoutt-Richardson the administrators of the Estate of Richard C. Stoutt, deceased and Others Respondent

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: BYRON, C.J. [AG.]
• Judgment Date: 12 May 1997
• Neutral Citation: VG 1997 CA 1,[1997] ECSC J0512-3
• Docket Number: CIVIL APPEAL NO.1 OF 1993
• Date: 12 May 1997

[1997] ECSC J0512-3

IN THE COURT OF APPEAL

Before:

The Hon. Mr. C.M. Dennis Byron Chief

Justice [Ag.]

The Hon. Mr. Satrohan Singh

Justice of Appeal

The Hon. Mr. Albert Matthew

Justice of Appeal [Ag.]

CIVIL APPEAL NO.1 OF 1993

Between:

Ecedro Thomas the lawful Attorney for Alice Thomas and Alphonso Thomas, the Administrators of the Estate of Caesar Augustus Thomas, deceased

Appellant

and

Augustine Stoutt and Grethel Stoutt-Richardson the administrators of the Estate of Richard C. Stoutt, deceased and others

Respondent

Appearances:

Mr. Kenneth Foster, Q.C. and Mr. Peter I. Foster for the Appellant

Mr. Paul Webster and Ms. Sharon Griffith for the Respondent

Land Law - Conflicting claims to the disputed land - Whether Statement of Claim seeking to set aside an order of the Adjudication Officer on ground of fraud of the respondent was properly struck out by trial judge - Order 18 rule 19(1) - Refusal by trial judge to allow for amendment in Statement of Claim - Whether a deed of conveyance was properly executed - Whether the issue of fraud was properly raised on the pleadings - Principles upon which a judgement obtained by fraud may be set aside - Legal principles which govern the pleadings where fraud is alleged - Supreme Court Order 18 rule 12(1)(a) - Whether the Adjudication Officer's decision of some 10 years earlier could be set aside - Land Adjudication Ordinance S.23 - Skelton v Skelton 37 WIR 181 cited in support. Appeal dismissed.

BYRON, C.J. [AG.]

1 This is an appeal against the order of Bishop J. dated the 22 ^nd February, 1993 striking out the Statement of Claim on an application for its amendment. The proceedings were commenced by the appellant on 7 ^th September, 1988. I should point out that the Estate of Richard Stoutt was in fact the only defendant. No "others" were ever identified or served with any process by the appellant nor intervened in the proceedings in any way. The Statement of Claim issued on 10 ^th April, 1990 sought to set aside, on the ground of the fraud of the respondent and others, an order made by the Adjudication Officer Frank C. Henville, Q.C. on 20 ^th April, 1978. By that order Parcel 9 Block 3437B of the Long Look Registration Section comprising approximately 13 acres [the disputed land] was ordered to be registered with absolute title in the following shares that is to say:

Caesar Thomas and those claiming through Angela Thomas [the appellant]	26/338
Estate of Richard Stoutt [the respondent]	57/338
Garfield Stoutt	45/338
Essie Stoutt	45/338
Estate Samuel Stoutt	42/338
Ingham Frett	30/338
Anthony Stoutt	24/338
Estate Edmund Stoutt	12/338
Rosamund Malone	15/338
Walter Stoutt	15/338
Victorine Joseph	15/338
Clara Wheatley	6/338
Estate Moses Stephens	6/338.

2 The matter came on for hearing on 11 ^th November, 1992. After the case was opened and testimony was being given on behalf of the appellant the learned trial Judge drew attention to his opinion that there were inadequate particulars for the action to be maintained. He adjourned the matter to allow an application to amend the Statement of Claim. It was on the hearing of this application that he ordered the striking out of the Statement of Claim.

3 The pleadings indicated that the adjudication process had a long history. On 12 ^th October, 1972 an Adjudication Officer had decided the same dispute in favour of the Stoutt family including Richard Stoutt. The Thomas family including Caesar Thomas petitioned for a rehearing of the dispute. There was a partial reversal to the extent that Caesar Thomas [whose mother was a member of the Stoutt family] was awarded one acre of land. The Thomas family appealed to the Court of Appeal and on 18 ^th February, 1977 it ordered the rehearing before Mr. Frank Henville, Q.C.

4 The decision of the Adjudication Officer revealed that the appellant's predecessor Caesar Thomas and other descendants of John Tomar [aka Thomas] claimed the disputed land on the basis that the said John C. Tomar was the grantee of 27 acres conveyed by John C. Fleming in a deed dated 28 ^th May, 1911. The respondent and other descendants of the thirteen children of Thomas Stoutt claimed on the basis of a deed of gift dated 5 ^th March, 1910 in which John Cunningham conveyed to the thirteen children of his deceased brother Thomas Stoutt by his first and second marriages thirteen acres of land at Paraquita Bay Estate ["the gift land"].

5 In his reasons for decision the Adjudication Officer stated that there were two issues before him:

• 1. was the disputed land [ie. Parcel 9] part of the land sold by J.C. Fleming to the appellant's predecessors in title or was it the gift land or part of the gift land?

• 2. was Samuel Stoutt in peaceful and undisturbed possession of the gift land or did he hold it by leave and license of the appellant?

6 The first question was unequivocally answered by the declaration that the disputed area was a portion of the gift land, and the second question was answered by finding that "all the Stoutt Family" including Caesar Thomas, Richard Stoutt and Samuel Stoutt used "the gift land" as descendants of the thirteen children in the deed of gift.

7 The Adjudication Officer partitioned parcel 9 both sides being represented by counsel. It is significant that no findings of fact were expressed on the issue of the entitlement of each claimant and the language of the Adjudication Officer in making his order suggests that this aspect of his determination was not contentious. His order was:

"Mr. Todman for the defendants conceded that if the disputed area were the "gift land" that is to say parcel 9 on Cadastral Survey Sheet 3437B that Caesar Thomas as the son of Angela Thomas [nee Stoutt] would be entitled to his ancestor's share of the disputed land and that the persons entitled to share in his parcel with absolute title as tenants in common would be the following persons who would be entitled to the shares set out opposite their names, that is to say ….. I agree with this and instruct the Registrar of Lands to amend the Land Register accordingly."

The Grounds of Appeal

8 I will reproduce the grounds of appeal filed by the appellant:

"1. The learned trial Judge erroneously made a Finding of Law that Fraud was, in effect, an issue before the Adjudicator and, consequently, the Plaintiff/Appellant would be estopped from raising the issue again.

2. The learned trial Judge adjudicated beyond the conclusions of the application to amend the claim, by treating the application as hearing of the Whole Trial without hearing evidence materially relevant to the issues raised on the pleadings even without amendment.

It is respectfully submitted that the learned trial Judge was without the appropriate evidence that the "gift lands" were, in fact, root-titled by Deed of Conveyance by John Cunningham to the thirteen [13] children of deceased brother Thomas Stoutt by his first and second marriages … thirteen [13] acres of land at Paraquita Bay Estate being a portion of fifty-four [54] acres: And therefore, the principles of Res Judicata and issue Estopped referred to by the learned Judge were erroneously misconceived:

There was evidence available to the Plaintiff which "kept alive" the cause of action, which should have been tried and determined, even if the application to amend was refused.

It is therefore still further submitted that the Adjudication Officers decisions, did not ascertain what in fact comprised the thirteen [13] acres of the gift land - after dismemberment from the original fifty-four [54] acres - neither the boundaries of the thirteen [13] acres, Nor the distinct separation of the aforementioned lands from another twenty-seven [27] acres as per Deed No.36 of 1911 dated the 15 ^th August, 1911 by John C. Fleming to John C. Tomar and therefore these issues were never finally resolved in relation to the two separate portions of lands.

3. The application for the said amendment was erroneously refused."

9 These grounds do not do justice to the lengthy, clear and carefully reasoned judgment of the learned trial Judge. Ground 1 is entirely misconceived as the learned trial Judge did not make any finding that fraud was an issue before the adjudicator nor did he rule that the appellant would be estopped from raising the issue again. The ratio decidendi was that the allegation of fraud [a] lacked distinct and careful particulars, [b] did not constitute matters that were discovered since the date of the decision and [c] were merely an ingenious device to circumvent the failure to employ the statutory provisions for appeal, which are limited to 90 days by bringing this action some ten years late to relitigate the same issues then determined.

10 Under ground 2 it is necessary to point out that the learned trial Judge did not rely on any principles of res judicata and issue estopped in coming to his decision. He referred, en passant, to the pleaded defence and reported the submissions of counsel for the respondent and appellant on that issue without expressing his opinion on them.

11 The submissions of the respondent as reported were indeed powerful. They amounted to urging that the allegation in the Statement of Claim that it was a fraud to designate the gift land as parcel 9 was intended to have the issue already decided by the Adjudication Officer relitigated. Secondly, although there were no findings of fact as to the entitlement of Richard Stoutt to share in the gift land the order evidenced the conclusions of the Adjudication Officer. The question as to whether he could not share because he was illegitimate could have been raised at the hearing, and therefore this allegation requires litigation of an issue which could have been determined in those earlier proceedings.

12 However, what was being considered was whether the Statement of Claim raised any issue capable of...