Frett et Al v Fahie

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Hewlett, J.
• Judgment Date: 09 December 1976
• Neutral Citation: VG 1976 HC 9
• Docket Number: No. 86 of 1975
• Date: 09 December 1976

High Court

Hewlett, J.

No. 86 of 1975

Frett et al

and

Fahie

Appearances:

Mc W. Todman for the plaintiff.

J. S. Archibald for the defendant.

Real property - Land registration.

Facts: There was a dispute between the parties relating to land at Josiah Bay estate. The plaintiffs relied on a deed of 1945 and asserted that their northern boundary was the sea. The defendant relied on a deed of 1917. Her deed did not describe the property. Evidence of witness familiar with area was relied on. The defendant had previously claimed some of the beach land. The claim was unsuccessful. The defendant extended her claim westward and succeeded in having land registered in her name.

Held: Registration in name of defendant was wrongful. Registration not obtained by fraud. Cancellation of registration ordered. Plaintiff to be registered as proprietors.

Hewlett, J.

1 It was admitted at the outset of the hearing of this matter that the plaintiffs bought land at Josiah Bay Estate from David Fonseca. The dispute between the parties concerned the northern boundary of that land. The plaintiffs relying upon their deed No. 79 of 1945 have asserted that their northern boundary is the sea. The defendant denies this. Relying on her deed No. 31 of 1917, she claims that she has owned and occupied land at Josiah Bay Estate bounded by the sea, but unfortunately her title deed does not describe the property. To resolve the issue therefore the parties have been obliged to rely on the evidence of witnesses familiar with the facts. And to my minds the most reliable witness called was one Exenel Tomar (or Thomas). He convinced me that he had a sound knowledge of the area going back to about the year 1920. Not only was he a tenant on the land then owned by David Fonseca (subsequently sold to the plaintiffs) but as a boy had frequented the area with his father Joseph Tomar (or Thomas) and his aunt Rachael Tomar (or Thomas) who were admittedly tenants of David Fonseca. And it is his knowledge that that parcel owned by Fonseca was bounded on the north by the sea.

2 There is no dispute to the fact that the defendant and her family owned land at Josiah Bay Estate, but Exenel Tomar speaks of two parcels which they owned, the one situate south of the estate road and the other, east of the estate road in the vicinity of a pond, and from the evidence adduced even by the defendant and her witnesses I have no problem in so finding.

3 The estate road leads ultimately to the beach on the north. The beach land is commonly called the “Sand” because of its...