Leo George Danford George Cyril Dessuit Objectors/Appellants v Trophena George Claimant/Respondent

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: PETERKIN, J.A.
• Judgment Date: 09 July 1976
• Judgment citation (vLex): [1976] ECSC J0709-1
• Docket Number: CIVIL APPEAL NO. 1 of 1975
• Date: 09 July 1976

[1976] ECSC J0709-1

IN THE COURT OF APPEAL

Before:

The Honourable The Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Peterkin

CIVIL APPEAL NO. 1 of 1975

Between:

Leo George

Danford George

Cyril Dessuit

Objectors/Appellants

and

Trophena George

Claimant/Respondent

Mc W. Todman for Appellants

J.S. Archibald, with him L. Stevent, for Respondent

PETERKIN, J.A.

1 This is an appeal from the decision of the Adjudication Officer dated 20th July, 1974, in which he declared the Respondent, Trophena George, to be the owner with absolute title of all the land in dispute situate at Gun Creek, North Sound, Virgin Gorda. The area is also known as Upper Bottom.

2 The Appellants filed a claim dated 27th March, 1974 for 5 acres of land at Gun Creek. The Respondent also filed a claim to lands at Gun Creek. It was dated 18th July, 1973, and was in respect of 26.39 acres of land which included the area of land claimed by the Appellants. Both claims were based on long possession. On investigation on the ground, the area pointed out to the Demarcation Officer was substantially more than the 5 acres claimed by the Appellants, but both the Appellants and the Respondent had in 1971 filed claims under the Title by Registration Act, in respect of which caveats had been entered. On that occasion the Appellants had identified the land by a survey which limited it to 5 acres, Counsel for Appellants had stated that the instant claim is related entirely to this area which is easily ascertainable by virtue of the survey.

3 The first three grounds of appeal are as follows:-

• (1) The Adjudication Officer was wrong in law in concluding that Trophena George is in effective possession of all the land in dispute

• (2) The Adjudication Officer erred in that he failed to take into account the legal effect of the request of the Objectors/Appellants made on the 4th June, 1971, for the issue of a first Certificate of Title to the land claimed by them under the Title by Registration Act, Cap. 206 of the laws of the Virgin Islands

• (3) The Adjudication Officer was wrong in law in finding Trophena George to be the owner with absolute title of the land claimed by the Objectors/Appellants."

4 Counsel for Appellants referred the Court to the evidence of possession given by the witnesses at the hearing, and to the finding of fact made by the Adjudication Officer and recorded in his decision at page 24 of the record. It reads:-

" There was no trouble over this land until 1963 and there is no doubt that Levi George and his sons were on the land at Upper Bottom maybe until 1969 as claimed by Leo George and Danford George."

5 He then submitted that the Adjudication Officer had drawn a wrong inference from the evidence when he concluded that Trophena George is in effective possession of all the land in dispute.

6 Counsel for Respondent submitted that though there was a finding of fact by the Adjudication Officer that the Appellants were in possession of the land up to 1969 this did not assist them as the Appellants did not have the use of the land as required by the definition of "possession" at Section 16 of the Land Adjudication Ordinance.

7 Counsel for Appellants has replied to this argument by contending as follows:-

• (1) There was no evidence to show that Trophena George had moved back into possession of the land after 1969 by virtue of a deed of title, her claim being based on long possession.

• (2) That the Appellants had the use of the land certainly up to 1969 as found by the Adjudication Officer.

• (3) That in 1971 they had applied for a Certificate of Title based on their possession to the said parcel of land under the Title by Registration Act.

• (4) That they had cut trails to enable the Demarcation Officer to inspect the boundaries in 1974 after both parties had filed their respective claims.

8 He then submitted that the undisputed fact was that they had continued to have the use of the land up to the time of the application, namely, March, 1974. I agree.

9 Accordingly, I would allow the appeal and vary the decision of the Adjudication Officer by an order that the Appellants be recorded as owners in common with absolute title in respect of the 5 acres of land defined in the survey to their application made in 1971 under the Title by Registration Act. Costs agreed at $300.00.

10 (sgd) N.A. Peterkin

11 N.A. PETERKIN

12 JUSTICE OF APPEAL

13 I agree.

14 (sgd) E.L. St.Bernard

15 E.L. ST. BERNARD

16 JUSTICE OF APPEAL

17 I also agree.

18 (sgd) Maurice Davis

[1976] ECSC J0709-1

IN THE COURT OF APPEAL

Before:

The Honourable The Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Peterkin

CIVIL APPEAL NO. 1 of 1975

Between:

Leo George

Danford George

Cyril Dessuit

Objectors/Appellants

and

Trophena George

Claimant/Respondent

Mc W. Todman...