James Skelton, Odean Skelton Cyril Skelton, Mary Freeman Lindo Scelton, Sylvanita Hodge Esmie Hyman Defendants/Appellant v James Alfred Skelton Plaintiff/Respondent

• Jurisdiction: British Virgin Islands
• Judge: ROBOTHAM, C.J.,Bishop, J.A.,MOE, J.A.
• Judgment Date: 15 January 1986
• Neutral Citation: VG 1986 CA 2
• Judgment citation (vLex): [1986] ECSC J0115-1
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: CIVIL APPEAL NO. 4 of 1985
• Date: 15 January 1986

[1986] ECSC J0115-1

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Robotham-Chief Justice

The Honourable Mr. Justice Bishop

The Honourable Mr. Justice Moe

CIVIL APPEAL NO. 4 of 1985

Between:

James Skelton, Odean Skelton

Cyril Skelton, Mary Freeman

Lindo Scelton, Sylvanita Hodge

Esmie Hyman

Defendants/Appellant

and

James Alfred Skelton

Plaintiff/Respondent

Appearances:

Dr. Ramsahoye, Q.C., and E.A. Hewlett for Appellants

McW. Todman, Q.C., for the Respondents

ROBOTHAM, C.J.

1 During the year 1970, certain land reform measures were introduced in the British Virgin Islands. One such Act was "An Ordinance to provide for the Adjudication of rights and interests in land and for purposes connected therewith and incidental thereto."That Act was the Land Adjudication Ordinance 1970 - No. 5/1970. The whole purpose and intent of this was to place all land in the B.V.I., which had been adjudicated upon on a Land Register, for which purpose companion legislation in the form of the Registered Land Ordinance 1970 - No. 8 of 1970-was also passed.

2 There was an important amendment in 1971 to the Land Adjudication Ordinance 1970, and this is to be found in Law No. 13 of 1971.

3 This appeal tunes solely on whether or not a High Court Judge sitting in her oilginal jurisdiction has the right to alter or amend a final decision of the Adjudicating Officer, by invoking the provisions of section 140 of the Registered Land Ordinance, No. 8 of 1970, there having been no appeal, and after a lapse of 9 years from the date of the decision of the Adjudicating Officer. Sec. 140 reads as follows:-

"140(1) Subject to the provisions of sub-section (2) of this section, the Court nay order rectification of the register by directing that any registration he cancelled or amended where it is satisfied that any registration including a first registration has been obtained, made or omitted by fraud or mistake."

4 The relevant facts:-

5 All seven defendants/appellants and the plaintiff/respondent are related and with the exception of the respondent who resides in New York, they all reside in the British Virgin Islands.

6 On 9th November, 1972, the respondent filed a claim with the Adjudicating Officer in respect of what he described in his evidence as "land for Skeltons" situated at Baughers Bay. It is not necessary to go into the details of succession, but it is sufficient to say that the respondent alleged that his father Joseph Emmanuel Skelton had inherited a half share of his father's estate and that in the year 1954, his (respondent's) father sold to him his one half undivided share in the land for the sum of five hundred dollars. He further alleged that the seven defendants/appellants then became proprietors in common of the other undivided half share. The deed by which he purported to acquire this land was before the Adjudicating Officer at the hearing.

7 Having appeared before the Adjudicating Officer, the respondent returned to the United States before the final decision was given. Whilst in New York, he heard something and on returning to Tortola, B.V.I., he found that the Land Register, Edition 1, of 19th October, text showed that he had now been registered in respect of the land which had been adjudicated upon for an equal one-eighth share in common with the seven defendants/appellants in respect of 5 ¹/₄ acres of land in the registration section of Road Town Block 3038B Parcel No. 114. His one-half share as claimed before the Adjudicating Officer had therefore been rejected.

8 His next step was a filing of a writ in the High Court, No.38/1981. The writ was filed on 27th April, 1981. The Statement of Claim alleged that-

"as a result of fraud or mistake or both he was registered together with the seven named defendants as proprietor in common with an equal one-eighth share in respect of the property instead of being registered as owner of an un-divided one-half share to which he is entitled."

9 He claimed an order under section 140 of the Registered Land Ordinance that the register of Parcel 114 of Block 3038B………. be rectified the show he is the registered proprietor of an undivided half share.

10 To briefly recapitulate the sequence of events, and put them in their proper perspective, we now have-

• (1) The appellant filing his claim with the Adjudicating Officer in 1972;

• (2) He left for New York before the decision was given;

• (3) The decision of the Adjudicating Officer was recorded in the Land Register on October 19, 1973;

• (4) It is undisputed that there was no petition or appeal of any sort, nor was there any extension of time sought in which to appeal;

• (5) In 1981, some nine years later it is being sought to rectify the decision of the Adjudicating Officer by invoking the powers conferred by section 140 of the Registered Land Ordinance on the basis of mistake.

11 The learned trial Judge in a judgment delivered on 3rd April, 1985, found for the respondent and ordered rectification of the register. In doing so, she said:-

"It seems to me that by holding that the plaintiff was entitled to one-eighth share, the Adjudicating Officer mistakenly concluded that the plaintiff was one of the children of James Skelton (Senior) when in fact he was the son of Joseph Emmanuel Skelton and claimed half share through purchase from his father. It follows the subsequent registration giving effect to this finding was done by mistake."

12 In the last paragraph quoted above, the judge recognized that the Land Register contained no mistake in the recording of the expression of the finding of the Adjudicating Officer; what in effect and in fact she was therefore amending when she ordered rectification was the final decision of the Adjudicating Officer. To determine whether this is permissible, one must look at the statutory provisions which exist for a claimant to pursue appeals if for any reason he is dissatisfied with the decision of the Adjudicating Officer, as well as at the structure of the Land Adjudication Ordinance 8 of 1970 as amended by 13 of 1971.

13 THE STATUTORY PROVISIONS OF THE LAIED ADJUDICATION ORDINANCE

14 In No. 5 of 1970, Part 1 deals with preliminaries and text Part II deals with the appointments and powers of officers. Part III illustrates how claims are to be made. Part IV sets out the principles of adjudication and the manner in which the adjudication record is prepared. Part V which is germane to this appeal, deals with objection and the finality of the Adjudication record. Sections 20–23 (to be found in Part V) were repealed and replaced by Law 13 of 1971. 20 as amended provides -

"The Administrator or any person named in or affected by the adjudication record or demarcation map who considers that record or map to be inaccurate or incomplete in any respect or who is aggrieved by any act or decision or omission of the Demarcation Officer or Survey Officer or by any entry in or omission from the adjudication record by the Recording Officer may, within ninety days of the date upon which notice of completion of the adjudication record is published petition the Adjudication Officer in respect of the act, decision, entry or any omission concerned, and the petition shall be heard and determined by the Adjudication Officer."

15 This is the first opportunity for redress given an aggrieved party by way of a petition to the Adjudicating Officer.

16 Under section 21, the Adjudicating Officer may correct any omission in the record at any time before it becomes final after giving interested parties notice and opportunity to be heard.

17 Section 22 reads-

"After the expiry of ninety days from the date of publication of the notice of completion of the adjudication record or on determination of all petitions presented in accordance with section 20, whichever shall be the later, the adjudication record shall, subject to the provisions of the Registered Land Ordinance, 1970 become final and the Adjudication Officer shall sign a certificate to that effect and shall deliver the adjudication record and the demarcation map to the Registrar together with all documents received by him in the process of adjudication."

18 This section is designed to bring to a finality the adjudication process and firmly bring the land under the provisions ones of the Registered Land Ordinance 1970, No. 8 of 1970, section 9(1) of which reads:-

"The Land Register shall comprise a register in respect of every parcel which has been adjudicated in accordance with the Land Adjudication Ordinance 1970………………."

19 Although section 22 (above) speaks of the finality of the Adjudic record, a further right of appeal is given under section 23 which reades:-

• "(1) Any person including the Administrator who Is aggrieved by any act or decision or omission of the Adjudication Officer and desires to question it or any part of it on the ground that it is erroneous in point of law or on the ground of failure to comply with any procedural requirement of this Ordinance may within ninety days from the date of the certificate of the Adjudication Officer under section 22 or within such extended time as the Court of Appeal, in the interests of justice, may allow, appeal to that Court in the form prescribed in the Court of Appeal Rules for civil appeals from the High Court.

• (2) On an appeal the Court of Appeal may, if it is satisfied that the act, decision or omission is erroneous in point of law or that the interests of the appellant have been substantially prejudiced by failure to comply with the procedural requirement of this Ordinance make such order or substitute for the act decision or omission of the Adjudication Officer Sunch decision as it may consider just and may under section 140 of the Registered Land Ordinance, 1970 order rectification of the register, and the order or decision of the Court of Appeal shall be final and conclusive and shall not be questioned in...