Sheila Schulterbrandt v Gertrude Callwood Coakley and Another
| Jurisdiction | British Virgin Islands |
| Judge | d'Auvergne, J. |
| Judgment Date | 23 August 2004 |
| Neutral Citation | VG 2004 HC 23 |
| Court | High Court (British Virgin Islands) |
| Date | 23 August 2004 |
| Docket Number | CLAIM NO. BVIHCV 2000/0039 |
IN THE HIGH COURT OF JUSTICE
CLAIM NO. BVIHCV 2000/0039
Mr. Clyde Williams for the Claimant
Mr. J.S. Archibald Q.C. with Miss Michelle Matthew for the Defendant
On the 31 st of March 2000, the Claimant filed a writ against the Defendants seeking amongst other things possession of a portion of land situate at White Bay, Jost Van Dyke, registered as Parcel 30 of Block 1240A of the Jost Van Dyke Registration Section.
She alleged that the Defendants from about the year 1992, wrongfully entered and occupied the said land either by themselves, their servants or agents and also erected three buildings and have wrongfully remained in possession thereof thereby causing her loss and damage. She also sought mense profits at the rate of $1,000.00 per month until possession.
The first Defendant in her defence pleaded Section 6(3) of the Limitation Act Cap. 43 of the Laws of the Virgin Islands.
The said first Defendant pleaded that she entered upon the said land in the year 1974 and that from the year 1981 has been in possession and has exclusively occupied a portion of the said parcel of land upon which she had openly and peacefully maintained and expanded a residence, a boutique and a beach bar and that she did so without the permission of any person.
The second Defendant pleaded that he constructed a concrete dwelling house on the land from 1973 that for four (4) years he rented the house to the Government of the Virgin Islands, that he entered and occupied the portion of land without the permission of any person.
He pleaded that he has been in open, peaceful and uninterrupted possession and moreover he further relied on section 6(3) of the Limitation Act Cap. 43 of the Laws of the Virgin Islands.
The Claimant in her reply pleaded estoppel; that the Defendants were estopped from relying on their alleged or any possession of the land prior to 1990.
The parties are first cousins. The Claimant is the daughter of Theophilus Callwood, the brother of Zephaniah Callwood who married Olivia Callwood, the parents of the Defendants who are brother and sister.
Theophilus and Zephaniah are the children of James Zebedee Callwood who had six children and who was also the owner of a parcel of land registered as Parcel 2 Block 1240B in the Jost Van Dyke 1240B in the Jost Van Dyke Registration Section of land in the British Virgin Islands.
The evidence discloses that two suits were filed with regards to this parcel of land viz Lot 2 of Block 1240. The first suit was 18 of 1985 and the second was Suit 242 of 1996. The parties agree that Licensed Land Surveyor Julian O. Skelton drafted a plan of survey of general boundaries dated 15 th July 1982 which divided Parcel 2 into six (6) portions namely A to F to the children of James Zebedee Callwood and Lot F was registered as Lot 30 but in that plan of survey did not note any structures.
It is to be noted that the Defendants do not agree with plan of survey of 1982 and mutation of 1990.
On the 15 th day of October 1991 Theophilus Callwood transferred Lot 30 to his son Paul Callwood (Instrument 1729 of 1991) and on the 6 th of July 1995 Paul Callwood transferred Lot 30 to his sister, the Claimant (Instrument 1702/1995).
The first Suit 18 of 1985 was between five children of James Zebedee and Olivia Callwood and Esmeralda Fraser wife and daughter of Zephaniah Callwood respectively. Zephaniah died in 1977 and Olivia and Esmerelda were his personal representatives. (They had previously taken out letters of Administration).
Paragraph 3 of the affidavit in reply of Esmerelda Fraser of that suit reads as follows:
‘Three are 3 houses on Lots D, E and F one of which is the renovated family house of James Zebedee Callwood, deceased, the father of the plaintiffs and the grandfather of one of the Defendants one is a business place built in 1970 by a son of Zephaniah Callwood deceased and the third is the home of another son of Zephaniah Callwood built after 1970 but several years before the death of Zephaniah Callwood (who died in 1977).’
The suit of 242 of 1996 drafted in the same terms as the present case (filed 31/ 3/2000) was discontinued on the 8 th of November 2000.
The Limitation Act of the British Virgin Islands (Cap. 43) was enacted on 24 th August 1961. The Registered Land Act of the British Virgin Islands (Cap. 229) was enacted on the 20 th July 1970.
Section 6(3) of the Limitation Act (which the Defence pleaded) provides as follows:
‘No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.’
Section 7(1) provides:
‘Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.’
Section 23 of the Registered Land Act reads as follows:
‘Subject to the provisions of section 27m the registration of any person as the proprietor with absolute title of a parcel shall vest in that person the absolute ownership of that parcel, together with all rights and privileges belonging or appurtenant thereto, free from all other interests and claims whatsoever, but subject—
(a) to the leases, charges and other incumbrances and to the conditions and restrictions, of any, shown in the register; and
(b) unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register.’
Section 28 reads as follows:
Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and effect the same, without their being noted on the register—
(g) ‘the rights of a person in actual occupation (my emphasis) of land or in receipt of the rents and profits thereof save where inquiry is made of such person and the rights are not disclosed.’
Acquisition of land by prescription is defined in section 135 of the Land Registration Act. Section 135(1) provides:
‘The ownership of land may be acquired by peaceable, open and uninterrupted possession without the permission of any person lawfully entitled to such possession for a period of twenty years.
Provided that no person shall so...
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Maduro-Dale and Another v Registrar of Lands
...and Others (1996) 52 WIR 238, concerned the issue of how uncontradicted evidence should be dealt with and the other, Sheila Schulterbrandt v.Gertrude Callwood Coakley et al BVI HCV 39/2000, dealt with the elements of a prescriptive title and could not help with the issue of permission to oc......