Egon Stoutt (Personal Representative of Samuel Stoutt) Joseph Frett (an heir of Angela Thomas) Claimants/appellants v Ecedro Thomas Alfred Thomas Alsie Thomas Malone Alice Thomas The Registrar of Lands Defendants/Respondents
| Jurisdiction | British Virgin Islands |
| Judge | Joseph-Olivetti, J. |
| Judgment Date | 24 June 2008 |
| Judgment citation (vLex) | [2008] ECSC J0624-5 |
| Date | 24 June 2008 |
| Court | High Court (British Virgin Islands) |
| Docket Number | CLAIM NO. BVIHCV2007/0224 |
IN THE HIGH COURT OF JUSTICE
CLAIM NO. BVIHCV2007/0224
Ms. Mishka Jacobs of McW Todman & Co for the Appellants
Mr. Gerard St. C. Farara, Q.C. of Farara Kerins for Respondents 1–4
(Appeal from the Registrar of Lands under Registered Land Act Cap. 229 - whether evidence adduced at hearing sufficient to support finding that the Respondents were in peaceable, open and uninterrupted possession of land without permission of any person for 20 years or more - whether Registrar's decision is against the weight of the evidence -Registered Land Act s. 135(2))
Ownership of land in the British Virgin Islands despite our Torrens system of title by registration continues to give rise to bitter disputes and as here it is not uncommon for the opponents to be members of the same family. This matter comes by way of appeal from the decision of the Registrar of Lands and is brought under Section 147(1) of the Registered Land Act Cap. 229 ("the RLA") and CPR Part 60. In substance, the Appellants are aggrieved by the Registrar's decision to allow the First Four Respondents' application for prescriptive title to certain lands at Paraquita Bay on the island of Tortola.
The Appellants rely on the following grounds:-
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(1) "The decision of the Registrar of Lands is wrong in law.
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(2) The Registrar of Lands failed to consider or properly consider the acts of occupation relied on by the Applicants for title by prescription.
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(3) The decision of the Registrar of Lands is against the weight of the evidence presented.
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(4) The decision of the Registrar of Lands is irreconcilable. By order dated the 28 th February 2006 on a hearing on the 10 th August 2005 the Registrar of Lands decided in favour of the Claimants/Appellants… this decision was appealed and pursuant to a written judgment of the Honourable Justice Joseph-Olivetti in BVIHCV 2006/0080 Ecedro Thomas, Alfred Thomas and Alice Thomas v. the Registrar of Lands a re-trial was ordered. A second hearing was conducted on the 10 th April 2007 based on the same facts as the first hearing. The Registrar of Lands in the second hearing has decided against the Claimants.
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(5) The Registrar of Lands should have found that the Applicants did not prove good title to parcel 67 Block 3437B in the Long Look Registration Section based on the evidence presented.
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(6) Based on the aforementioned reasons the Appellants are aggrieved by the decision or order of the Registrar of Lands dated the 10 th September 2007."
The Appellants seek the following relief:-
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(1) "The decision of the Registrar of Lands be quashed.;
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(2) The Court declares that the Appellants are the registered proprietors of parcel 67 Block 3437B in the Long Look Registration Section;
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(3) In the alternative that the Registrar of Lands be ordered to conduct a new hearing".
The land, the subject matter of this appeal is a parcel of land consisting of approximately 6 and 1/2 acres. It is registered as Long Look Registration Section; Block 3437B; Parcel 67 ("Parcel 67") in the names of ten persons or their heirs including the Appellants as proprietors in common in various shares.
The parties are all related as they have a common ancestor, Mr. 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.
On 27th February 2004 the Respondents applied to the Registrar to be registered as proprietors of Parcel 67 by prescription pursuant to Section 135(2) of the RLA. The application was heard on 10 th August 2005 and by order dated 28 th February 2006 the Registrar denied their application but gave no reasons for his decision. The Respondents were aggrieved and appealed. The appeal was successful and the matter was remitted to the Register for a re-hearing. This was held on 10 th April 2007 and this time the Respondents' application was granted. The decision of the Registrar is contained in his written ruling of 10 th September 2007.
At the second hearing the Registrar heard evidence from Mr. Ecedro Thomas on behalf of the Respondents, and from Mr. Joseph Frett on behalf of the Appellants and Oliver, Egon and Harold Stoutt (together the Objectors). These were the same persons who testified at the first hearing.
On considering the Grounds of Appeal the court is of the view that Grounds 1, 2, 3, and 5 can be dealt with together as the gravamen of these complaints is that the Registrar's decision cannot be supported either on the evidence or in law. Ground 6 is not a ground of appeal as it merely states that the appellants are aggrieved by the decision.
First, however, I will consider Ground 4 as to my mind it can be readily disposed of. Ms. Jacobs who appeared on behalf of the Respondents bravely submitted that at the second hearing the parties relied on the same evidence that was relied on at the first hearing and as the Registrar came to a different conclusion from that arrived at after the first hearing this his second decision is irreconcilable and perforce cannot stand. Mr. Farara Q.C. pointed out that the first decision was set aside and therefore this argument had no merit.
Ms. Jacobs' contention at first sight might appear attractive but is a specious argument as it overlooks the obvious fact that the court set aside the first judgment - an insurmountable hurdle. It cannot therefore be argued that the second judgment is irreconcilable with the first as the first no longer exists. This ground is therefore devoid of merit.
Now to Grounds 1, 2, 3 and 5. Ms. Jacobs in a nutshell submitted that the Registrar's decision was wrong in law as the Respondents had adduced no evidence to support an application under s.135 of the RLA having regard to the law on adverse possession. That the acts of occupation relied on by Mr. Thomas, namely cultivation of the land and the rearing of animals are acts which do not amount to actual possession as required by law and that there is no evidence that the Respondents erected any structure on the land. Further, that the Respondents' alleged acts of occupation are acts which are not inconsistent with the enjoyment of the land by the persons entitled to it; that there is no requirement in law for the Appellants to physically occupy the land and that the use of the land by the Respondents does not amount to adverse possession to the exclusion of the rightful owners. Ms. Jacobs also submitted that the Registrar in his ruling failed to identify what acts of occupation he considered in making his decision and whether the acts relied on amounted to acts of possession as required by the law.
Counsel relied on Geoffrey Cobham v Joseph Frett, (as personal representative of Thomas Frett, deceased)1, West Bank Estates Ltd v Shakespeare Cornelius Arthur2, and Samuel Lettsome v Landford Lettsome3 for the relevant legal principles.
Mr. Farara submitted that there was sufficient evidence before the Registrar to support his conclusion in favour of his clients both in fact and in law. That when one perused his ruling it was evident that the Registrar analyzed the salient aspects of the evidence of the parties, that he preferred the Respondents' evidence and found that the Respondents and their father had been in very long and exclusive possession and user of the entire parcel. That having regard to the evidence on the nature and situation of the land, the acts carried out by the Respondents on the land since 1951 was sufficient to establish sole possession to the exclusion of the other owners of the land who themselves on their own evidence had not used the land for over 40 years. And, that the Registrar's decision could be supported by the evidence and was correct having regard to the law as explained in the leading cases cited by Ms. Jacobs.
I have considered the ruling. From this it is clear that the Registrar found that the registered owners of parcel 67 at the date of the application (27th February 2004) were Walter Stoutt, Victorene Joseph, Heirs of Edmund Stoutt, Clara Wheatley, Heirs of Moses Stephens, Ingram Frett, Heirs of Angela Thomas, Caroline Stoutt and Egon Aston Stoutt (Personal Representatives of the estate of Samuel Stoutt), Esme Ernestine Rabsatt and Marion Smith (Personal Representatives of the estate of Rosamond Malone), William Glanville Stoutt and Iona Stoutt Forbes (executors of the estate of Essie Stoutt). These persons were tenants in common in various shares. This finding is not challenged.
The Registrar found that initially parcel 67 was occupied by Mr. Samuel Stout (Uncle Sammy) the uncle of Mr. Ecedro Thomas and Mr. Ecedro Thomas' father, Mr. Caesar Thomas. Both Uncle Sammy and Mr. Caesar Thomas reared cattle on the land. Uncle Sammy left the land during his lifetime but his sons continued in occupation until they too ceased. When they ceased occupation they had no dealings with the land save that they observed it occasionally as they passed by on the public road.
The Registrar found the evidence of Mr. Joseph Frett contradictory Mr. Frett lived abroad for forty years and visited the BVI every five years. His evidence in chief as to when Uncle Sammy ceased occupation was clearly not accepted and it must be inferred that the Registrar accepted his answer on cross-examination that Uncle Sammy left the land in the sixties. And that the Registrar also accepted the evidence of Mr. Ecedro Thomas that the Thomas's occupied and had possession of the land without interference from anyone...
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