Lucien Callwood Urman Callwood Gertrude Callwood-Coakley Wendell Callwood Claimants v The Registrar of Lands Defendant v Sheila Callwood Schulterbrandt John Schulterbrandt objectors
| Jurisdiction | British Virgin Islands |
| Judge | HARIPRASHAD-CHARLES J |
| Judgment Date | 17 February 2012 |
| Neutral Citation | VG 2012 HC 2 |
| Judgment citation (vLex) | [2012] ECSC J0217-1 |
| Court | High Court (British Virgin Islands) |
| Docket Number | Claim No. BVIHCV2008/0142 |
| Date | 17 February 2012 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Claim No. BVIHCV2008/0142
Dr. Joseph S. Archibald QC and Ms. Anthea Smith of J.S. Archibald & Co. for the Claimants
Mrs. Joanne Roberts-Williams, Solicitor General for the Defendant
Mrs. Marie-Lou Creque of SCA Creque & Associates for the Objectors
Lucien Callwood, Urman Callwood, Gertrude Callwood-Coakley and Wendell Callwood (collectively "the Claimants") apply to set aside an Order dated 17 April 2008 made by the Registrar of Lands ("the Registrar") wherein he denied the Claimants' application to be registered as proprietors of certain parcels of land on the basis of prescriptive title.
The subject property of this Appeal consists of twenty-three (23) parcels of land registered as parcels 25 - 29, 31 - 44 and 48 - 51 of Block 1240A on the island of Jost Van Dyke ("the lands"). 1 The parcels form a total area of approximately 65 acres and were formerly part of Parcel 2 of Block 1240A ("Parcel 2") as registered during the Cadastral Land Registration exercise in the 1970s.
The original owner of the lands was James Zebedee Callwood. Upon his death in 1951 and, in the absence of a will, the land went to his six lawful children: Zephaniah Callwood, Theophilus Callwood, Keturah Callwood, Florencia Callwood, Christina Callwood and Geraldine Callwood as tenants in common in equal shares. During the Cadastral Survey exercise, and in 1974, Zephaniah Callwood filed ownership of the land for "the Heirs of Zebedee Callwood in care of Zephaniah Callwood". He died in 1977 and was survived by his wife and eleven lawful children, including the four Claimants: Lucien, Urman and Wendell and Gertrude. 2 James' son, Theophilus Callwood died in 1998. He was the father of one of the Objectors, Sheila Callwood-Schulterbrandt ("Mrs. Schulterbrandt").
On 26 April 2001, the Claimants applied to be registered as proprietors of the lands by prescription. The Land Register listed the owners of the lands as:
| Sheila Callwood | Parcels 25, 34 & 40 |
| Sheila Callwood Schulterbrandt | Parcel 30 |
| Sheila Schulterbrandt and John Schulterbrandt as Trustees | Parcels 49 & 50 |
| Beatrice Innis Orr | Parcels 26, 35 & 39 |
| Sheradina Callwood alias Geraldine Callwood | Parcels 27, 32 & 38 |
| Doris Kelly | Parcels 28, 36, & 41 |
| Khari Damani Herbert | Parcel 48 |
| Gregory Callwood | Parcel 51 |
On 18 June 2001, a notice of the application for registration by prescription was placed in a local newspaper. In response, objections were filed by Mrs. Schulterbrandt, John Schulterbrandt, Myrna Herbert on behalf of Khari Herbert, Ivor Stridiron on behalf of Doris
Kelly and Paul Callwood (collectively "the Objectors"). The Claimants and the Objectors were both represented by Counsel at the hearing before the Registrar.On 17 April 2008, the Registrar denied the Claimants' application for title based on prescription. By Fixed Date Claim Form filed on 15 th May 2008, the Claimants approached this court for an order that:
- The order of the Registrar, denying the Claimants' application for prescriptive title of the lands, made on 17 April 2008, be set aside; 2. The Claimants have been in exclusive, peaceable, open and uninterrupted possession of the disputed parcels without permission of any person lawfully entitled to such possession for a period of twenty years; and that the Registrar do register the Claimants as the proprietors of the said parcels of land; 3. Costs and further or other relief as the court deems just.
Trial in the High Court began on 23 November 2010. Upon the closing of the Claimants' case, the matter was adjourned on several occasions to enable the Objectors, who were in attendance, to retain Counsel and participate in the proceedings. Trial resumed on 18 July 2011. At the close of the trial, the parties agreed that the court should reserve judgment but permit them a final opportunity at settlement negotiations. Sometime in October 2011, Dr. Archibald QC, who appeared as Counsel for the Claimants, indicated that negotiations had failed and requested delivery of the reserved judgment.
The Claimants and two witnesses, their nephew, Edward Freeman and contractor, Melvin Hodge, gave testimony before the Registrar. Their case is that they had been in peaceable, open and uninterrupted possession by actual occupation, fencing, house building, residence, cultivation, animal rearing and road works on the lands, and that they had the intention to possess exclusively; such possession and occupation commencing before the Cadastral Survey took place.
Only two Objectors, Mrs. Schulterbrandt, and Myrna T Herbert, on behalf of her son Khari Damani Herbert, in respect of Parcel 48, testified before the Registrar. Ivor Stridiron, a USVI Attorney, was granted leave to appear on behalf of Beatrice Orr and the estate of Sheradina Chinnery nee Callwood. He participated fully during the hearing before the Registrar. Representation was also made at the hearing on behalf of a registered proprietor, Doris Kelly.
Stripped to its bare essentials, the Objectors' case, based largely on the testimony of Mrs. Schulterbrandt, was that (i) they were inheritors of all of Parcel 2 through James Zebedee Callwood whereby his six children were entitled upon his intestacy to be the equal owners of Parcel 2; and (ii) the Claimants had entered onto the lands with permission but they were aware that it was "family land" to be subdivided. Mrs. Schulterbrandt further testified that at least some of the Claimants participated in family meetings to discuss the subdivision; that they were aware of the survey commissioned by the family and agreed to the subdivision plan chosen by the family. At no time did they make it clear that they were claiming the lands.
In his decision, the Registrar focused on the testimonies of the Claimants. He stated that "One area of testimony which was relied on was the cutting of the road across the subject properties. The thrust of the various testimonies by the four [Claimants] were (i) who commissioned the cutting of the road (ii) who paid for the cutting of the road and (iii) when and where the road was cut. Testimony was also heard from Mr. Melvin Hodge, the owner of a heavy equipment business who the [Claimants] said they had hired to cut the road through the property. "The testimony of the [Claimants] and the Witnesses with regards to the cutting of the road seems vague as to the extent of the cutting of the road and as to whether the road cut was leading to a specific location on the land that is, to a house spot."
The Registrar next referred to the evidence as it related to the surveying of the lands for subdivision and the subsequent transfers noting that " the [Claimants] deny any knowledge of the meetings that were held to discuss the division of the land among the beneficiaries to the estate and claim that they were not consulted about the subdivision of the land". He states that "it is to be noted that the [Claimants'] mother and sister as administrators of their deceased father's estate were authorized to make decisions". He also noted that the Claimants had renounced their rights to administer the estate.
The Registrar seemed to conclude that meetings were held at different times to discuss the way forward in apportioning the family estate amongst the beneficiaries. He expressed disbelief that no person or persons representing the Claimants' father's interest participated in these meetings, noting that testimony from the Objectors stated that either the two administrators or other family members of the Claimants had been present. He also expressed disbelief that none of the Claimants' were aware of the undertaking to survey and to subdivide Parcel 2.
Additionally, the Registrar determined that the Claimants' father, Zephaniah Callwood had shown no intention to prescribe the property in question because at the time of the Cadastral Survey, he filed ownership of the property on the Cadastral Claim Form "for the Heirs of Zebedee Callwood in care of Zephaniah Callwood". Accordingly, the Registrar concluded that the Cadastral Survey and Registration exercise interrupted any prescriptive rights that might have accrued to the Claimants' father and subsequently, onto them. He further concluded that the surveys carried out between 1982 and 1986 to subdivide the estate interrupted the occupation and possession claimed by the Claimants.
The Registrar further stated that "the joint Affidavit of the [Claimants] at Clause 13 states: " That we have been cultivating portions of Parcels 35 and 36 for more than 35 years. In fact, we are still farming on those two parcels." The combined area of parcels 35 and 36 is approximately 16 acres. The testimonies of the [Claimants] did not provide any evidence as to what portion of parcels 35 and 36 they occupied. Therefore claiming the entire parcel as is implicit in their application is beyond reason. The [Claimants] also made similar claims for parcels indicating that they either cultivated, burned coal or fenced various parcels which encompassed a large acreage of land. Again, no evidence was produced to show that those parcels were occupied [of][sic] possessed in their entirety."
The Claimants advanced fourteen Grounds of Appeal, many of which overlap. Fundamentally, they raise the following issues namely:
- Did the Registrar err in failing to conduct a site visit? 2. Did the Registrar err in finding that the Cadastral Survey, the survey commissioned by...
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