Fahie and Others v Chief Registrar of Lands and Others
| Jurisdiction | British Virgin Islands |
| Judge | Redhead, .J. (Ag) |
| Judgment Date | 24 March 2010 |
| Docket Number | CLAIM NO. BVIHCV2009/47 |
| Court | High Court (British Virgin Islands) |
| Date | 24 March 2010 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL)
CLAIM NO. BVIHCV2009/47
The Appellants are the children of Mrs. Ilva Fahie-Lettsome, who died in 2004. She was a midwife and was sometimes referred to as Dr. Ilva Fahie-Lettsome. The Respondents, Cynthia Damaris-Hodge and Archison Hodge are the granddaughter and the great-grandson, respectively of Camelita Flemming. Margret Fahie in her witness statement said Camelita Flemming was her aunt (paragraph 10).
Camelita Flemming was the registered proprietor of land described as East Central Registration section Block 3139B Parcel 32. Camelita Flemming died in 1974.
The Appellants filed an application on 24th March 2006 pursuant to section 135(2) of the Registered Land Act Cap 229 to be registered as owners by prescription of Parcel 32 Block 3139B Each Central Registration Section. The basis of the application before the Registrar of lands was that the appellants claimed their right to ownership of the land through their mother the late Ms. Ilva Fahie (also known as Ilva Lettsome) and in their own right having been in occupation, cultivating and rearing animals on the land along with their mother for over forty years.
On 30th May 2006 the Respondents filed opposition to the Appellants' application for grant of prescriptive title.
On 10th September 2008 the Registrar of Lands heard the application and made the following order.
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(i) The Application for Prescription is granted for the portion of land which the applicants occupied; that is, from the gate down to the shed with a maximum set back of up to ten feet from the front of the shed.
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(ii) A survey is done (sic) at the expense of the applicants to partition that portion of the property ordered to be granted to the Applicants.
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(iii) The Applicants must submit preliminary plans for the survey to the Land Registry Department for our approval before it is submitted to the planning Authority and Survey Department for their Approval.
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(iv) The remaining property is to remain in the name of Camelita Flemming.
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(v) Access to the remainder of the property will pass over the existing road from the gate going pass the shed.
On the 6th February 2009 the Appellants filed an appeal against the Registrar's Order. Four grounds of appeal have been field by the Appellants, namely.
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1. At no time in the proceedings was evidence tendered to the effect that the Applicants occupied only the upper part of the land down to the shed.
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2. The Registrar was wrong in the appreciation of the facts.
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3. The Registrar was wrong in Law in making an order to the effect that the land should be subdivided so that the Objectors could be registered as proprietors of one part of the land and the Appellants to the upper part of the land, The Registrar was wrong in making the order in that there was no cross application by the objectors for a subdivision of the Land, or for the objectors to the entire or to any part of the land. As such, the Registrar acted outside his jurisdiction in making an order in respect of which there was no application and in respect of which the act conferred no discretionary powers to make an order in favor of the objectors.
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4. The Registrar acted outside his jurisdiction to determine how the remainder of the land should be registered, how access may be gained to the remainder of the land when no application for sub-division was before him. The Registrar's only duty was to determine whether, based on the evidence, The Appellants satisfied the criteria for prescription to the Land. Instead, the Registrar acted outside of his jurisdiction by determining which part of the Land the Appellants used, ordering a sub-division of the Land; and determining how access to the remainder of the Land may be gained.
The Appellants' case is that their mother went into occupation of the land prior to the death of Camelita Flemming in 1974. Their Mother farmed the land. She planted guava, mango, soursop, West Indian Cherry, lime and a host of other fruit trees. Their Mother also grew Vegetables on the land. On other portions of the land their mother reared goats, pigs, cows and fowls. She marketed the produce, meat and eggs at the Road Town market. The Appellants argued that they too farmed the land with their mother.
Mayet Fahie in her witness statement said: ‘from our childhood we worked on the land with our mother. She taught us a lot about agriculture, we worked with her on the land pulling weeds, cutting bush, cleaning fruit trees, running behind animals and putting them in pens and gathering eggs. Even after our Mother's death and up until today, we continue to carry out agricultural activities on the land. We still harvest the fruits and ground provisions; my sister Moviene Fahie who is the one primarily responsible for selling the fruits, while my sister Marreth Fahie-Smith, is primarily responsible for marketing the produce, especially the guava-berry. Our brother Reeial Fahie, who died in January 2006, used a lot of fruits that were produced from the land to make locally flavoured snow-cones which he sold to the public.’
In cross examination to Mrs. Carter-Ruan, she said that she worked at Peter Island for Nine years eleven months and ten days up to 1998. She is now employed at Peebles Hospital from 1999. Her mother worked on the said plot of land since she [Mayet] was a child. She too worked on the land up to the age of thirty-five years.
Moviene Fahie one of the other Appellants in her witness Statement said that the Appellants, her siblings are all over forty years. They are all farmers. They worked on the land with their mother who was in charge of the farm on all business aspects of the farm. Her mother fenced the land, she paid to carry out the fencing work.
She paid Berris Fahie to cut a road on the land, to cut dams, grade the roads and to plough the land whenever necessary. Moviene Fahie also said in her witness statement that they have occupied the land for over twenty years. They have a special attachment to the land. They have always behaved as though the land was theirs. A few years ago she gave her nephew permission to build a shanty (store room) on the land to store their fruits and vegetables.
Moviene Fahie said that during their occupation of the land, no one has ever claimed ownership of the land. No one has ever tried to remove them from the land. No one has ever interrupted them. She is not aware that her mother sought permission, nor was any permission granted to her mother to remain on the land. Following her mother's death, they (the Appellants) did not seek permission and none was granted for their continued occupation and cultivation of the said land. It was not until 2006 that an objection was brought by the Respondents to their application for title to the said land.
She said her mother was taking care of the land taxes. Shortly after her mother's death she, Moviene Fahie, carried out an investigation and discovered that the land taxes were not paid by any one. As a result they have paid land taxes from 2005 to present. In crossexamination, this witness said that her mother worked the land. She reared animals she has been on the land all of her life with her mother. She is 51 years old. Her mother paid to cut the road. She did not know how much her mother paid.
In 2006 Leoncio Jose was on the land. He cleared the land before 2004. She never hired Berris to work on the land since her mother's death. She did not know who put her mother on the land. However this witness was shown to have said before the Registrar of Lands that Camelita Fleming put her mother to stay on the land.
Berris Fahie in his witness statement said that he is a heavy equipment operator from since the late 1980's. He has worked for the Appellants over the years. He knew Ilva Fahie he worked for her on a year to year basis on the land, depending on crops and on the weather. He cut roads, dams, graded roads cleaned the land, Parcel 32. He was paid by Ms. Ilva Lettsome. He said ever since Mrs. Ilva Lettsome's death, he worked on one occasion on the land in question, his son also did some work for Moviene Fahie on the land; He does not know Archison Hodge, Cynthia Hodge or Loreli Hodge personally. He has never seen either of them on the land in question.
Leoncio Jose speaks spanish, his testimony was interpreted by Nelson Samuel, a Lawyer fluent in English and Spanish. In his witness statement Jose said that he is 67 years of age. He has known Mrs. Ilva Fahie-Lettsome and her children for over 19 years. He said that they planted a lot of crops and fruit trees. They reared cows, sheep, goats, hogs, and fowls on the land. He said for the past nineteen (19) years and up until today, he has worked the land which Mrs. Ilva Lettsome and her children occupied. He cut down the bush cleaned the fruit trees when they became over grown and prepared the ground for Planting. He said that when he went to work for Mrs. Ilva Fahie-Lettsome, they were already cultivating the land. He also said in his statement ‘When Mrs. Ilva Fahie-Lettsome was alive, she was the one who paid for me to clean of the land. I continued to work for the family after Mrs. Ilva Fahie-Lettsome's death around five years ago. I worked on the land with Mr. Ritzel Lettsome and Mr. Reeial Fahie. After the death of Mrs. Ilva Fahie-Lettsome her son Mr. Reeial Fahie was the one who paid me. Mr. Reeial Fahie died in January2006. Now the other members of the family, especially Ms. Moviene Fahie took responsibility to call me when the land need to be attended to and paid me.
He also said that for the nineteen years that he...
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