James Skelton et Al Appellants v Tortola Investment Trust Ltd Respondent Odean Skelton & Others Appellants Tortola Investment Trust Ltd Egypt Construction Ltd Chase Manhatten Bank Ltd Respondents

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: BISHOP, C.J. Acting
• Judgment Date: 25 June 1986
• Neutral Citation: VG 1986 CA 7,[1986] ECSC J0625-1
• Docket Number: CIVIL APPEALS NOS. 2 and 3 of 1984
• Date: 25 June 1986

[1986] ECSC J0625-1

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Bishop-Chief Justice (Acting)

The Honourable Mr. Justice Moe

The Honourable Mr. Justice Williams (Acting)

CIVIL APPEALS NOS. 2 and 3 of 1984

Between:

James Skelton et al

Appellants

and

Tortola Investment Trust Ltd

Respondent

and

Odean Skelton & Others

Appellants

and

Tortola Investment Trust Ltd

Egypt Construction Ltd

Chase Manhatten Bank Ltd

Respondents

Appearances

Mr. K. Foster for Appellants

Mr. J. Archibald for Tortola Investment Trust Ltd with Miss Janice George-Creque

Mr. M. Todman for Egypt Construction Co. Ltd with Mr. Paul Webster.

BISHOP, C.J. Acting

1 On the 24th June, 1986 this Court dismissed the appeal and stated that its reasons would be reduced in writing and delivered on a later date. We do so now.

2 The appeal was against the decision of Joseph J. delivered on the 16th April, 1984 in which she ordered that (1) James Skelton and Esmie Hyman (nee Skelton) deliver up, forthwith, possession of a parcel of land in Registration Section Road Town, Block 2938B, Parcel 46 to Tortola Investment Trust Ltd (hereinafter also referred to as T.I.T. Ltd) and (2) James Alfred Skelton, Odean Skelton, Esmie Hyman (nee Skelton) Lindo Skelton and Mary Augustus Francis (nee Skelton), give up forthwith possession of parcels of land in the same Registration Section and Block numbered 147 and 148, to Egypt Constructaion Ltd. The Skeltons were also ordered to pay the costs of the other parties, to be taxed if not agreed. In addition, the Registrar of Lands was directed to remove cautions entere in respect of Parcels 147 and 148, in the Land Registry.

3 At the hearing before us, learned Counsel for the parties agreed that a decision by this Court on whether or not the matter before the learned trial Judge was res judicata would be a final determination of the case.

4 The facts which led to the trial in the High Court and which emerged from the evidence adduced there, were as follows:

5 On the 23rd May, 1921, by virtue of a Crown Grant and in consideration of the sum of £160.0.0 paid by him, William Campbell Roy, his heirs and assigns, acquired ownership in 178 acres of land known as Pasea Hall and Fahie Hill. The boundaries of that land were set out in deed No. 39 of 1921.

6 Between 1921 and 1928 William Campbell Roy and James Skelton of Frett Yard, disagreed over the ownership of land in the area, and litigation was started in the High Court. However, a spirit of compromise prevailed and on the 23rd November, 1928, they entered into a written agreement whereby James Skelton agreed to relinquish all claim to an area of land in Pasea Hall, bounded as follows: On the North a public road, on the East lands of James Skelton, on the South by the sea, and on the West by Jackass Ghaut. It may be noted here that Parcel 46 referred to above had, the sea as its southern boundary and Jackass Ghaut as its western boundary. Janes Skelton also agreed that he would abandon all law suits between himself and William Campbell Roy and would not enter into any further litigation in respect of the same land. William Campbell Roy agreed to pay sums of money to James Skelton towards full settlement and as compensation for the expenses incurred in earlier litigation. In addition he agreed to lay no claim to the portion of land on which houses of James Skelton were not erected.

7 In December 1952 William Campbell Roy died, testate; and on the 8th July 1953 probate of his will was granted to executors Christine Scott Roy and John Rowan Scott Roy, his widow and son, respectively.

8 On June 6th 1961, by deed of conveyance (No. 101 of 1961) the executors conveyed to the devisee Christine Roy, 90 acres of land known as Pasea Hall. Its boundaries on the east, south, and west were identical with those set out in the Crown Grant.

9 On the 10th November 1964, by deed of conveyance (No. 280 of 1964) Christine Scott Roy conveyed specific areas of land at Pasea Hall to a company called Pasea Plantation Ltd.

10 On the 23rd September, 1969, Pasea Plantation Ltd. brought an action against James Skelton (No.30 of 1969) for wrongful possession of land at Pasea Hall Estate, delineated in the Statement of Claim. Skelton defenced a the action and it was heard in the High Court by Renwick J., who, in his decision delivered on the 19th October, 1970, found, inter alia,

"The nub of the question in this case is the extent of Frett Yard. There is no doubt that the land conveyed to William Campbell Roy included Frett Yard and that at some stage William Campbell Roy tried to get possession from the defendant's father who then occupied Frett Yard. This he failed to do and Frett Yard had been occupied by the defendant and his predecessors for a considerable period of time………. Acting on the defendant's instructions as to boundaries of Frett Yard, a survey of Frett Yard was carried out by Mr. Harold Lewellyn a licensed surveyor and a plan drawn up. This plan showed the boundaries and extent of Frett Yard as follows: On the north by the public road and measuring 92 feet, on the south by the sea and measuring 106 feet 6 inches, on the east by Pasea Hall Estate and measuring 84 feet 8 inches and on the west by Pasea Hall Estate and measuring 75 feet, the whole amounting to 7810 square feet in extent. This evidence is uncontroverted and clearly shows that the defendant's lands do not include the said lands………

I consequently order…….that the defendant deliver up immediately to the plaintiff the said lands, that the plaintiff is granted the injunction as prayed………"

11 The lands to be delivered up amounted to 7000 square feet and its boundaries were stated in the Statement of Claim. Skelton was not ordered to deliver up 7810 square feet, the area found to be Frett Yard. That was found to be owned by James Skelton and indeed in 1972 he laid claim to it under the Land Adjudication Ordinance 1970. He held no rival claimant and learned Counsel for the appellants submitted before us that it was later Parcel 80.

12 The boundaries of the land that Skelton was ordered to deliver up to Pasea Plantation Ltd. were: "On the east by other land of the plaintiff, on the west by Frett Yard, on the north by the public road, on the south by the sea;" and it was clear that the western boundary of Frett Yard itself was not found by the trial Judge to be Jackass Ghaut; nor was its eastern boundary found to be either a mango tree or Johnson's Ghaut.

13 James Skelton was dissatisfied with the decision of Renwick J. He appealed to the Court of Appeal on the 27th November, 1970.

14 On the 9th March, 1971, the appeal was dismissed with costs and therefore the findings of fact referred to above were upheld. However because of the wording of the formal order that was drawn up, the Court of Appeal made an order that the order of Renwick J., as filed, must he differently worded so that it set out unequivocally the area of the land mentioned and the exact terms of the injunction. It was important that persons generally, and James Skelton in particular, be in the position where they, and he, could know with certainty the specific area of land that he was ordered to give up to Pasea Plantation Ltd., and precisely what he was enjoined from doing.

15 I digress here to observe that this Court did not have before it a filed and signed copy of the order of March, 1971 in the terms ordered. In answer to a question from the Court we were informed that that order had not yet been obeyed. " The failure to do so, for whatever reason, must be frowned upon especially after more than 15 years. Clearly the necessary action ought to be taken by the party disobeying, to rectify the omission.

16 It may also be pointed out that save for Parcel 80, neither James Skelton nor any other member of the Skelton family claimed any other land under the Land Adjudication Ordinance 1970.

17 The findings of fact that James Skelton had wrongful possession of the 7000 square feet of land delineated as stated earlier, and on the area and boundaries of Frett Yard unquestionably owned by James Skelton, must stand and must be binding on the Skeltons. So too must the order made by the Court.

18 Following the decision of the Court of Appeal, Pasea Plantation Ltd. took further steps. On the 15th June 1972, through its solicitor, it claimed ownership of the lands it purchased from Christine Scott. Claims No. 59/1569A and No. 59/1569B were filed under the Land Adjudication Act 1970. Demarcation of the boundaries of the lands was completed on the 5th October 1972 and the adjudication record dated 17th November 1972 showed, among other facts, that there were two sections in Road Town, Block 2938B and these were parcels numbered 46 and 48. They had a common owner, Pasea Plantation Ltd., and the same list of documents was produced to the recording officer in respect of each claim. There were no rival claimants in respect of either of these two parcels of land.

19 On the 19th October, 1973, Pasea Plantation Ltd. was registered, under the Registered Land Ordinance 1970 as the sole owner of Parcels 46 and 48 with absolute title. This registration was not challenged until there was an allegation in the amended defence filed in suit No. 12/1978 on March 15, 1978 that Parcel 46 was wrongly registered in the name of that company "in that the adjudication officer in error wrongly considered that the Pasea Hall Estate lands were part and parcel of the Frett Yard lands which said lands are separate and distinct."

20 It was on the 21st February, 1974, that Pasea Plantation Ltd. transferred the lands known as Parcel 46 and Parcel 48 to T.I.T. Ltd.; and on the 20th March, 1974 by deeds No. 186 of 1974 and No. 187 of 1974 T.I.T. Ltd. was registered as sole owner with absolute title-of Parcels 46 and 40 respectively. Thereafter, and until about 15th October, 1974 T.I.T. Ltd., through its estate manager...