Francisco et Al v Nibbs

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Mr. Justice Gordon
• Judgment Date: 27 June 1967
• Neutral Citation: VG 1967 CA 1
• Docket Number: Civil Appeal No. 2 of 1967
• Date: 27 June 1967

West Indies Associated States Supreme Court. Court of Appeal

Hon. Chief Justice., Gordon, J.A.,Lewis, J.A.,

Civil Appeal No. 2 of 1967

Francisco et al

and

Nibbs

H. Harney for appellants

L. Lockhart for respondents

Real Property - Land — Possession

Real Property - Land — Ownership

Mr. Justice Gordon

1 In a suit brought by the plaintiffs/appellants against the defendants/respondents in which they preyed the court for a declaration that they were the owners of 3 acres of land situate at McNamara in Tortola, Virgin Islands, the trial judge, Mr. Justice Heyliger, on the 2nd December, 1966, declined to make the declaration prayed for. According to the pleadings the declaration sought was that they, the appellants, are the owners of 3 acres of land situate in McNamara in the island of Tortola as described in their statement of claim and in the alternative, that Louis Webster Francisco is the owner of the said lands, and an order for possession of the premises. The appellants, being dissatisfied with the decision of the learned judge, have appealed.

2 The circumstances which give rise to this litigation are as follows:–

3 The appellants are the natural children of Ann Elizabeth Nibbs nee George, and as such they base their claims to the parcel of land in question by way of succession to their mother who died intestate in August 1933. On her death, Ann Elizabeth Nibbs was survived by her husband, Joseph Benjamin Nibbs, the first defendant respondent, and four children, including the two appellants, all of whom were born out of wedlock. Of these four children, two are abroad residing in the United States of America and are not connected with these proceedings. The first appellant was born in 1905, and apart from the second appellant, there is no evidence as to who was or were the father or fathers of the other children.

4 The second appellant, James Godfrey Nibbs, happened to be the son of Ann Elizabeth Nibbs and Joseph Benjamin Nibbs, the first respondent. He was born in 1913, 16 years before his father married his mother in 1929, and because he was born when his father's marriage to another woman was still subsisting he could not have been legitimated per subsequens matrimonium.

5 By an indenture dated 25th August 1932, Ann Elizabeth Nibbs senior and Daniel Henry Nibbs sold the 3 acres of land in question to Ann Elizabeth Nibbs junior, who according to the evidence, bought it with the money supplied by her husband, the first defendant, respondent in 1935 By virtue of section 11 of the Legitimacy Act Cap. 346, the appellants therefore base their claim to the lands, as successors of their mother who died in 1933. Their claim consequently as earlier indicated is based on succession. The respondents, on the other hand, have based their claim an the contention that the first respondent provided the money with which his wife purchased the land in question in 1932, that she as his trustee entered into possession and remained there until she died in 1933 On her death, he continued in un-interrupted possession of the land until 1962, when he sold it to the second respondent. On her death he continued in possession of the land and on 13th October, 1965, he obtained from Samuel Nibbs who presumably had some minor interest in the land, a deed of ratification of the sale of the land in 1932 by Elizabeth Nibbs Senior and Daniel Henry Nibbs to Ann Elizabeth Nibbs Jr., his wife.

6 The first respondent continued in possession of this land until 1962 when he sold it to the second respondent. In Suit No. 13 of 1962 which James Godfrey Nibbs, the second appellant in the current proceedings, as plaintiff, brought against the two respondents in the current proceedings, he asked the Court for a declaration in respect of the same land, similar...