Skelton v Skelton et Al

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Joseph, J.
• Judgment Date: 03 April 1985
• Neutral Citation: VG 1985 HC 6
• Docket Number: Civil Suit no. 38 of 1981
• Date: 03 April 1985

High Court of Justice

Joseph, J

Civil Suit no. 38 of 1981

Skelton

and

Skelton et al

Appearances:-

Mr. McWelling Todman, Q.C. and Mr. Paul Webster for plaintiff.

Mr. Edgar Hewlett for defendants.

Real Property - Registration — Rectification.

Facts: Application for rectification of land register based on allegations that current registration was obtained by fraud, mistake or both. Plaintiff claimed that he was a purchaser for value of an individual half share of the parcel of land and that the defendants were proprietors in common of the other undivided half share. Plaintiff waited fourteen years before bringing action.

Held: Delay not fatal to claim. Since the parties operated as a family unit and the property was regarded as family land it was not surprising that no legal proceedings were instituted by a member of the family against another member in respect of the property. Rectification ordered to make plaintiff proprietor in common with one-third share.

Joseph, J.

1 This is an action by the plaintiff for an order under section 140 of the Registered Land Ordinance, 1970 (No. 8 of 1970) (the Ordinance) that the Land Register pertaining to Parcel 114 of Block 3038 B of the Road Town Registration Section be rectified on the ground that the current registration was obtained by fraud or mistake or both: and that rectification be done by substituting for the following entry in the proprietorship section-

“Odean Skelton, Cyril Skelton, Vary Freer, Lindo Skelton James Skelton, Sylvanita Hodge, Esmie Hyman and Alfred Skelton as proprietors in common with equal one-eighth shares.”

2 an entry that the plaintiff is proprietor of an undivided one-half share of the said parcel and the defendants are proprietors in common of the other undivided half share.

3 The plaintiff claims that he is the purchaser for value of an undivided share of parcel 314 (the property) from Joseph Emanuel Skelton (deceased), and that ho holds a memorandum of sale from Joseph Skelton in respect of the share claimed.

4 The defendants deny the allegations of fraud or mistake and claim that the alleged memorandum of sale was ineffective to convey the property or interest in the land. The defendants allege that the claim by the plaintiff was rejected by the Adjudication Officer and the plaintiff did not file an appeal against the decision of the Adjudication Officer, neither did he petition that officer as required by section 20 of the Land Adjudication Ordinance, 1970 (No. 5 of 1970).

5 The defendants counterclaim for rectification of the Register of Lands by deleting the entry that reflects the plaintiffs entitlement to 1/8 share in Parcel 114 of Block 3038 B on the ground that it was obtained by fraud or mistake or both, and that the said 1/8 sharp purporting to be his be divided among Odean Skelton, Mary Francis nee Skelton, Cyril Skelton, Lindo Skelton, Sylvanita Hodge and Esmie Hyman nee Skelton.

6 I find the following facts — Joseph Skelton and Susan Ann Skelton nee Frett had two sons, Joseph Emanuel Skelton and James Skelton and one daughter, Mary Augusta Skelton. On the death of Joseph and Susan, Joseph Emanuel, James and Mary Augusta were each entitled to one third undivided share in the property. The plaintiff was the son, born out of wedlock of Joseph Emanuel Skelton and Christophena Turnbull. James was the father of the defendants.

7 In February/March 1954 the plaintiff built a house on the property at Baughers Bay and commenced to live in it. That house was destroyed and in 1948, he commenced construction of another house.

8 On 20th January 1954, Joseph Emanuel executed a document that purported to sell to the plaintiff for U.S. $500 his share of the property. The document which was witnessed by Oliver Stoutt — who lives in Tortola but seems to have indicated to the first defendant his unwillingness to give evidence and Richard Maduro (deceased): and bears the signature of the plaintiff, reads:

“I, Joseph Emmanuel Skelton, at present residing at Frett Yard in the island of Tortola, British Virgin Islands, do hereby agree to sell to my son James Alfred Skelton (Junior) of Baughers Bay in the island of Tortola, British Virgin Islands, my land claim for the sum of five hundred dollars ($500.00) in United States Currency: The said James Emmanuel Skelton in good health and clear mind agree to this sale at the signing of this document.”

9 Joseph Skelton died on 17th March, 1948. Joseph Emanuel Skelton died on 19th December, 1956 and James Skelton on 28th December, 1958.

10 Letters of Administration were granted to James Skelton (Junior) and Ellis Skelton on 11th February 1967, in respect of the estate of Japes Skelton (Senior). On 7th August, 1971, James Skelton (Junior) (Ellis Skelton having died) executed an assent (No. 506 of 1971) vesting the land at Baughers Bay in the defendants.

11 Odean Skelton, who is 70 years old, stated that from the time he was same ten years old, Wallymore Skelton, an illegitimate child of Joseph Skelton, was in charge of the land and paid the taxis for the land to the time he died in the late 1960s early 1970, after...