Forbes et Al v Forbes et Al

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Hewlett, J.
• Judgment Date: 11 October 1976
• Neutral Citation: VG 1976 HC 7
• Docket Number: Motion No. 1 of 1974
• Date: 11 October 1976

High Court

Hewlett, J.

Motion No. 1 of 1974

Forbeset al

and

Forbes et al

Appearances:

K. Foster for the applicants

Mc W. Todman for the 1st, 2nd, 3rd, 4th, 7th, 8th & 9th respondents

J. S. Archibald for the 5th & 6th respondents

Constitutional law - Separation of powers — Legislation avoiding powers of High Court — Sections 7(3) and 23 of Land Adjudication Ordinance declared void.

Hewlett, J.

1 This is a motion filed on behalf of three applicants who claim to be entitled to certain lands which were the subject-matter of court proceedings but which were stayed by virtue of the Land Adjudication ordinance, 1970 (hereinafter referred to as the Ordinance) to give place to adjudication proceedings under the Ordinance.

2 The motion listed nine respondents who presumably also have or claim an interest in the said lands but the nature or extent of the respective claims of these respondents has not been set out in any affidavit or even adverted to by either counsel in his submission and argument.

3 The applicants moved the court for an order that

• (1) the High Court suits listed in Schedule C of the Motion be restored to the High Court list for hearing;

• (2) the adjudication proceedings listed in Schedule B of the Motion be set aside and/or nullified; and

• (3) the respondents, their servants and/or agents be restrained from further assaulting and/or molesting and/or threatening the applicants, on the ground that they are the lawful successors in title to Richard Forbes, their grandfather, who died intestate in October, 1924 seized of the said lands.

4 Schedule B listed eight land disputes disposed of by adjudication proceedings but there was no indication in the said Schedule or in any affidavit and no evidence to identify any of those proceedings with any of the respondents; and Schedule C listed five High Court suits which had been stayed by virtue of section 7 of the Ordinance and again there has been no evidence to connect the said adjudication proceedings with the High Court suits to show that they related to the same subject matter, namely, the lands listed in Schedule A of the Motion. I have however assumed that the respondents by instructing counsel and by appearing and arguing the matter have impliedly admitted this but I consider that counsel's neglect to set out the groundwork for his case should not go unmentioned.

5 In support of their Motion, the applicants later filed and served “Particulars of Nullity” alleging:-

• (a) that the Ordinance was ultra vires and therefore void in that it was repugnant to and inconsistent with Imperial legislation applicable to the island, namely;

• (a) The West Indies Act, 1967

• (b) The West Indies Associated States Supreme Court Order, 1967

• (c) The Virgin Islands (Courts) Order, 1967

• (d) The Virgin Islands (Constitution) Order 1967

• (e) The Virgin Islands (Appeals to Privy Council) Order, 1967;

• (2) that the Ordinance was contrary to the principles of natural justice in the appointment of the Adjudicating Officer, a layman and therefore unqualified to practise and/or adjudicate as regards rights, title and interests in land, the rules of evidence, civil procedure and English legal jurisprudence;

• (3) that the Ordinance, in its direction and application, involved a usurpation and infringement by the Legislature of judicial powers (unduly vested in a layman) inconsistent with and repugnant to Imperial legislation applicable to the island.

6 And in their supplementary affidavit annexed to the Particulars of Nullity they asserted their belief based.

7 on advice (and I quote) that:-

• (a) The Adjudication Ordinance, Virgin Islands No. 5 of 1970 is ultra vires and therefore null and void.

• (b) The Adjudication officer's appointment is a nullity.

• (c) The said Adjudicating Officer was at the material time, and still is, a layman unqualified to adjudicate upon our land dispute with the respondents.

• (d) The suits referred to in Schedule of our said Motion was erroneously stayed by the Adjudicating Officer.

• (e) The suits referred to in the said Schedule of our said Notice of Motion are matters Lis Alibi Pendens and therefore cannot be estopped nor stayed by a tribunal itself inferior to the High Court of this island.”

8 There was no affidavit in opposition but at the close of the submission by counsel for the applicants counsel for the fifth and sixth respondents indicated that none of the High Court suits listed in Schedule C involved his clients, whereupon counsel for the applicants withdrew against them and the proceedings against them were accordingly by consent struck out with...