Hazel v George
| Jurisdiction | British Virgin Islands |
| Judgment Date | 19 April 1999 |
| Neutral Citation | VG 1999 HC 4 |
| Date | 19 April 1999 |
| Docket Number | SUIT NO. 117 OF 1995 |
| Court | High Court (British Virgin Islands) |
IN THE HIGH COURT OF JUSTICE (CIVIL)
BEFORE: Benjamin, J. (In Court)
SUIT NO. 117 OF 1995
Mr. H. St. Clair-Douglas for the Defendant
Mr. J.S. Archibald, Q.C. Mr. Ian Sandy with him for the Plaintiff
On 28 th August, 1995, the Plaintiff filed a Writ of Summons indorsed with claims for certain declarations and for orders to give effect thereto. The said claims all related to the ownership and right to occupation of a dwelling-house constructed on certain land owned by the Defendant, situate at Pockwood Pond, Tortola, British Virgin Islands and more fully described as Parcel 70 of Block 2534B of the Mount Sage Registration Section.
The Defendant, having entered an appearance, filed a Defence disputing the Plaintiff's claims and the facts upon which the same were based, as set out in the Statement of Claim.
However, in the alternative, the Defendant pleaded in sum, that the alleged agreement upon which the Plaintiff's action was based, was in any event illegal and unenforceable as against the Defendant under the provisions of the Non-Belongers Land Holding Regulation Act, Chapter 122 of the Revised Laws of the Virgin Islands. Arising from this, pursuant to an application by Summons made by the Defendant, it was ordered on September 27, 1996 that the following point of law be heard as a preliminary issue:—
‘Whether upon the facts pleaded in paragraphs 2 and 5 of the Statement of Claim and paragraphs 6, 7, 8 and 9 of the Defence, the oral agreement alleged in the Statement of Claim is illegal and unenforceable as against the Defendant.’
These proceedings are concerned with the resolution of the above-stated preliminary issue.
Upon the pleadings, the Plaintiff alleged and the Defendant admitted that they cohabited though there was disagreement as to the duration. In addition, paragraph 4 of the Defence, in addressing paragraph 5 of the Statement of Claim, implicitly admitted that the Plaintiff executed certain loan documents related to the financing of the construction of the said dwelling house but disputed the existence of any oral agreement or the Plaintiff's entitlement to any share in the said house.
At the hearing, there was tacit agreement on both sides, as is indeed borne out by paragraphs 2, 3 and 5 of the Statement of Claim, that central to the Plaintiff's claims is an alleged oral agreement between the parties. Paragraph 2 reads:—
‘2. During the period of the relationship; the parties orally agreed to jointly construct and own a dwelling-house (‘the dwelling house’) on land owned by the Defendant at Pockwood Pond and more particularly described in the Land Register as Parcel 70 of Block 2543B of the Mount Sage Registration Section which would ultimately be the matrimonial home.’
Paragraphs 3, 4, 5 and 6 described certain alleged events purported to have been in furtherance of and in reliance on the said alleged oral agreement between the parties.
The Plaintiff claims to be entitled to equal ownership with the Defendant of or at least a lesser share in the said dwelling house; and in the alternative he makes a claim for monetary compensation for his interest in and/or contribution towards the construction of the said dwelling house.
Paragraph 8 of the Statement of Claim compendiously expresses the Plaintiff's claim. It avers:
8. ‘That all monies expended, labour and/or contributions towards the construction of the dwelling-house, were done in pursuance of the oral agreement hereinbefore mentioned at paragraph 2.’
The Defendant's Defence unequivocally denies that there was any such oral agreement or for that matter any agreement whatsoever between the parties for the construction of the dwelling house for use as a matrimonial home. The Plaintiff's assertion of an entitlement to a share in the said dwelling-house was roundly disputed.
The foregoing outline of the main elements of the pleadings provides the background to the preliminary issue. The Defendant's alternative defence can be reduced to certain steps of reasoning; viz: (1) The Plaintiff is a non-belonger; (2) In order to hold land or an interest therein, a non-belonger must obtain a licence from the Governor pursuant to the provisions of the Non-Belongers Land Holding Regulation Act, Cap. 122 (‘the Act’); (3) The alleged oral agreement was an arrangement whereby an interest in land affected by the Act was to be held for a non-belonger; (4) Such an arrangement required the Plaintiff as a non-belonger to obtain a licence which he had omitted to do; and (5) Consequently, the alleged oral agreement was and is illegal and unenforceable as against the Defendant. This represents the substance of paragraphs 6, 7, 8 and 9 of the Defence.
It cannot be gainsaid that the resolution of the preliminary issue would determine whether it is necessary or otiose to try the substantive issues as to whether or not the alleged oral agreement was made, and if so, what are the legal consequences thereof.
However, before proceeding to deal with the preliminary issue, the Court must direct its mind to a matter raised by the Court of its own motion at an early stage of the Applicant/Defendant's submissions and alluded to in the submissions on behalf of the Plaintiff. It was pointed out in response to the Defendant's factual assertions in paragraph 8 of her Defence, that the Plaintiff is a non-belonger as defined in the Act and has not been granted a licence by the Governor in relation to the Defendant's land, the Plaintiff joined issue. Could it therefore be assumed that the Plaintiff is an unlicenced non-belonger? The matter was put another way by learned Queen's Counsel for the Plaintiff when he argued that the present proceedings are premature in that they are predicated upon proof of the non-belonger and unlicensed status of the Plaintiff (under section 2(2) of the Constitution of the Virgin Islands (Constitution) Order 1976 and pursuant to section 4 of the Non-Belongers Land Holding Regulation Act, Cap 122 respectively.), all matters in issue on the pleadings.
Each party held a different view as to the incidence of the burden of proof. The Defendant argued that the onus probandi lies with the Plaintiff as to whether or not he has a licence, a matter peculiarly within the knowledge of the Plaintiff. Counsel for the Defendant made an analogy to licensing cases under the criminal law where the Prosecution need only prove non-production of the relevant licence. Reference was made to a passage at page 102 of Cross on Evidence (5 th ed.) which Mr. Archibald astutely identified as being applicable to the criminal law and indeed fell under the heading ‘Trials on Indictment.’ In its stead, he cited paragraph 4–28 of Phipson on Evidence (14 th ed.) which reads:
‘In civil cases, the so-called presumption of innocence throws the burden of proof upon the party alleging an unlawful act.’
Accordingly, it was submitted on behalf of the Plaintiff that it was not for the Plaintiff to prove he is a non-belonger and without a licence, but rather, such burden fell upon the Defendant and could only be discharged by proof to the civil standard. Learned Queen's Counsel cited the case of Tilling v. Whiteman [1979] 1 All E.R. 737, wherein the House of Lords discouraged the practice of a first instance Court embarking upon the hearing of preliminary points before first finding the facts.
It seems to me that the Defendant placed much reliance upon the state of the pleadings. In their present state, there can be no demur that the Defendant must prove the averments in paragraph 8 of the Defence. It may be that the situation may be altered by the serving of a notice under Order 27 Rule 2(1) for the Plaintiff to admit those facts. Be that as it may, the Defendant must nevertheless present the requisite evidence if only, at the minimum, as to the state of her knowledge. For so long as the Defendant seeks to establish that the Plaintiff acted unlawfully and is liable to criminal sanction, the facts fundamental to the Defendant's assertion must be proved. In my view, the Court is obligated to make findings of facts upon paragraph 8 of the Defence before this preliminary point can be disposed of. There being no concession offered by the Plaintiff or mutual agreement to those matters being treated as facts, I am constrained to hold that this Court ought not to proceed with the trial of the preliminary issue.
However, the matter does not end here. Counsel for the Defendant protested that this matter ought properly to have been raised upon the hearing of the application prior to the order of September 27, 1996, being made. Having regard to this observation and being mindful of the potential saving of costs, I would nevertheless proceed to deal with the preliminary issue as embodied in the said Order of Court.
I therefore turn to consider whether by virtue of the provisions of the Non-Belongers Land Holding Regulation Act, Cap 122, the oral agreement alleged by and upon which the Plaintiff's entire case rests, is illegal and unenforceable against the Defendant.
Needless to say, the Defendant's submissions must be taken to proceed on the assumption that the Defendant is a non-belonger under the provisions of section 2(2) of the Virgin Islands (Constitution) Order 1976 and does not hold a licence issued by the Governor pursuant to section 4 of the Act.
The Non-Belongers Land Holding Regulation Act, Cap 122 (hereinafter referred to as ‘the Act’) became law on February 1, 1923 and was then entituled the Alien Land Holding Regulation Ordinance (No. 14 of 1922)....
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