Maduro-Dale and Another v Registrar of Lands
| Jurisdiction | British Virgin Islands |
| Judge | Joseph-Olivetti J |
| Judgment Date | 10 June 2010 |
| Court | High Court (British Virgin Islands) |
| Date | 10 June 2010 |
| Docket Number | BVIHCV 2008/0314 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL SUIT)
BVIHCV 2008/0314
J.S. Archibald Q.C. and Anthea Smith of JS Archibald & Co. for the Claimants
Jo-Ann Williams Roberts Solicitor-General with K. Edwards for the Respondent
This matter comes to the High Court by way of an appeal from a decision dated 12 th September 2008 of the then Registrar of Lands, Mr. Cecil Dawson. It raises the oft visited question of whether or not the Claimants have acquired prescriptive title to a parcel of land at Baughers Bay, Tortola in the Territory of the Virgin Islands. The Registrar ruled that they did not and being aggrieved they are seeking relief from this court pursuant to their right of appeal under section 147 of the Registered Land Act Cap. 229 (‘the Act’).
Eight grounds of appeal are relied on as set out in the affidavit of Michele Worrell filed in support of the appeal on 13 th October, 2008-see para. 14 thereof. These are as follows:-
Ground 1—The Registrar has not made any findings of fact on the evidence of each or all of the two Applicants and their witnesses in relation to the matter of their possession of the Parcels in issue for determination, including uncontradicted evidence of possession for in excess of 20 years;
Ground 2—The Registrar failed to take into account that the evidence of each of the Applicants as to prescriptive occupation and possession was virtually unchallenged and uncontradicted in cross-examination;
Ground 3—The Registrar wrongly took into account matters which he considered as interruption of possession which were not in fact or in law interruptive events set out in Section 136 (6) of the Act;
Ground 4—The Registrar failed or refused to consider the Final Skeleton Arguments and Submissions of Counsel for the Applicants together with the case authorities, all as complied in a bundle delivered to him;
Ground 5—The Registrar failed or refused to visit the site of the land claimed by the Applicants;
Ground 6—The Registrar erred in concluding that Blanche Malone exercised rights as an owner in possession when she transferred the land to Julie Malone in 1996 and used this as a basis for coming to the conclusion that the Applicants were not in possession of the land;
Ground 7—The Registrar erred in finding that possession was interrupted when Blanche Malone-Fraser was registered as Trustee for the beneficiaries and when Blanche Malone-Fraser transferred the land to Julie Malone;
Ground 8—The Registrar failed to carry out a proper judicial hearing of the claim of the Applicants.
The gravamen of the Registrar's decision as set out in his written decision was that the application for prescriptive title failed as the Claimants had not satisfied the requirements of section 135 of the Act, as the evidence established that the Claimants' mother Althea Scatliffe from whom they derived title had been given permission by the then registered owner of the land, Arabella Malone to occupy the land. Further, that they did not meet the twenty year possession criteria as their possession was interrupted by the transfer of the land by Blanche Malone Fraser to Julie Malone, the objector, in 1996 and thus they had not occupied the land for 20 years after Julie Malone became the registered owner.
This is taken from the background facts as set out by the Registrar in his written decision. Mrs. Arabella Malone was the registered owner of land at Baughers Bay, which after several subdivisions now comprises parcel 343, the disputed land. She had two children, Rufus Malone and Blanche Malone-Fraser. Rufus had a relationship with the Claimants' mother, Althea Scatliffe and had four children by her, Cecil, Marvin, James and Antonio. They are the half brothers of the Claimants, who are two other children of Ms. Scatliffe.
Althea Scatliffe was given permission by Mrs. Malone to construct her house on a portion of the land after Ms. Scatliffe's home was destroyed by the ravages of a hurricane in the 1950's. Ms. Scatliffe, through her sons, the half brothers of the Claimants, erected a concrete house on the land. Ms. Scatliffe dwelt on the land until her death in 2002.
Initially both the Claimants lived with their mother on the land. The Second Claimant ceased to reside there when she left for St. Thomas in 1974 and later the First Claimant moved out and in the 1990's, returned to reside with her mother. Mrs. Malone died intestate in 1976. Her property was administered and Blanche Malone-Fraser became the trustee of the estate and she transferred the disputed land to Julie Malone, the objector, as the sole heir of Julie's father, Cecil. Julie Malone then lived in the United States. The Claimants applied for prescriptive title in 2000, after Mrs. Malone Fraser had indicated to the Second Claimant that they would have to vacate the land and would no longer be able to live there once their mother died.
The Court shall address Ground 5 first as it can be dealt with shortly. As far as I can determine, on my perusal of the Act and the Registered Land Rules, there is no provision which requires the Registrar to visit the disputed land. The procedure for dealing with an application for prescriptive title is governed by section 137 and it is patently silent on visits to the locus. In addition, as far as the notes of evidence and the submissions before the Registrar disclose, the Claimants did not request a visit. And, finally, the question of whether or not to visit the locus is a matter for the discretion of the Registrar as the sole arbiter. He could properly refrain from doing so if in his view a visit would not assist. Having regard to the issues before him a visit to the land would not have assisted and therefore he did not act improperly by not visiting the site. This ground of appeal therefore fails.
I now turn to Grounds 4 and 8 which concern the propriety of the proceedings. It is true, as Mr....
To continue reading
Request your trial