Tortola Investment Trust Ltd v Skelton et Al

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Joseph, J.
• Judgment Date: 16 April 1984
• Neutral Citation: VG 1984 HC 3
• Docket Number: Civil Suit no. 12 of 1976
• Date: 16 April 1984

High Court of Justice

Joseph, J

Civil Suit no. 12 of 1976

Tortola Investment Trust Ltd

and

Skelton et al

Appearances:

Mr. Archibald Q.C. — Mr. Farara Wrath him for plaintiff in Suit No.12 of 1976 and for the first defendant in Suit No.92 of 1982.

Mr. Foster — Mr. Hewlett with him for the defendants in Suit No.12 of 1976 and for the plaintiffs in Suit No.92 of 1982.

Mr. Todman Q.C. — Mr. -Webster with- him for 2nd and 3rd defendants in Suit No.92 of 1982.

Real Property - Possession.

Facts: The plaintiff claimed to be entitled to possession of a parcel of land which the defendants wrongfully took possession of. The defendants alleged that the parcel of land was wrongfully registered in the plaintiff's name. The defendant further alleged that they were in lawful possession and that this had been so since 1920.

Held: The defendants were ordered to deliver up possession of land excluding a specified area to the plaintiffs.

Joseph, J.

1 On application made to the court, the two Suits were consolidated and came on for trial on the 16th February 1983, on which date, learned counsel for the plaintiffs in Suit No.92 of 1982, sought and obtained the leave of the court to join Egypt Construction Ltd. as a second defendant. On the 15th March 1983, learned counsel for the plaintiffs sought and obtained the leave of the court to join Chase Manhattan Bank N.A. as a third defendant in Suit NO.92 of 1982.

2 The plaintiff in the Statement of Claim in Suit No.12 of 1976 claims –

• (1) that it is entitled to possession of a parcel of land situate at Pasea in Road Town, Tortola, described in the Land Register as Parcel 46 of Block 2938 D of the Road Town Registration Section:

• (2) that by instrument of transfer filed in the Land Registry as Instrument No.186 of 1976 Pasea Plantation Ltd. transferred that said parcel to the plaintiff;

• (3) that on and after the 15th October 1974 the defendants wrongfully took and still retain possession of the said parcel;

• (4) possession and mesne profits.

3 The defendants in their defence deny that the plaintiff is entitled to possession and claim that –

• (1) the parcel of lane was wrongly registered in the plaintiff's name in that the Adjudication Officer in error wrongly considered that Pasea Hall testate lands here part and parcel of the to Frett Yard lands which said lands are separate and distinct;

• (2) the plaintiff's claim is barred by effluxion of time;

• (3) the Adjudication Officer's powers under the Land Adjudication Ordinance are unconstitutional being repugnant to imperial legislation applicable to this territory;

• (4) the decision of the Court of Appeal dated the 9th March 1977 in Civil Appeal No.4 of 1970 affecting the lands herein has not been followed, leaving the matter unresolved.

4 The defendants further claim that they are in lawful possession anal that they and their predecessors in title have always been in lawful predecessors of the said lands, nee vi, nee clam, nee precario as far back as the year 1920.

5 The plaintiff in a reply claims-

• (a) that the Adjudication Officer did not make any error as alleged in the defence and that in any event there had not been a petition or appeal against any action of the Adjudication Officer.

• (b) that the learned judge in Suit No.30 of 1969, gave judgment for Pasea Plantation Ltd. (the immediate predecessor in title of the plaintiff) against James Skelton in which the learned judge stated inter alia that the nub of the question was the extent of Frett Yard which undisputably belonged to the defendant James Skelton; that the judgment found that Frett Yard was 7,810 square feet by survey of licensed Surveyor, Harold Llewellyn, that James Skelton wrongfully possessed land abutting Frett Yard and that he was ordered to deliver up 7,000 square feet of land abutting Frett Yard.

• (c) that it would rely on the judgment of Court of Appeal in Civil Appeal No.4 of 1970.

6 The plaintiffs' claim in suit No.92 of 1982 is substantially the same as is contained in their defence in Suit No.12 of 1976. In addition they –

• (1) claim that they are the owners in lawful possession of a parcel of land known as Frett Yard “which is erroneously referred to as lots 46, 47, 80, 48 or lots 147 and 148” in the records of the Registered Land Office, Road Town, commonly know and referred to as Frett Yard, and that the boundaries of their lands are –

  • On North by the public road

  • On South by the sea

  • On nest by Jackass Ghut

  • On East by a mango tree; and Johnson Ghut, or however else the same may be bounded.

• (2) claim that the first defendant by mistake or fraud wrongfully caused a subdivision or partition of the plaintiffs' land by converting lot 48 into lots 147 and 148 and registering the land in its name.

• (3) seek an injunction restraining the defendants, their servants or agents from entering upon and occupying the said lands,

7 The plaintiffs' claim recovery of possession of parcels 147 and 148 from the second defendant, and an injunction restraining the second defendant their servants and or agents from entering upon and occupying the said land. As against the third defendant, the plaintiffs claim that, with knowledge of a restriction against any dealings in Parcels 147 and 148 and of a Suit pending in the High Court, it purported to enter into a charged of the said parcels to secure repayment of a sum of money loaned to the second defendant.

8 The first defendant's defence is substantially what is set out in its statement of claim, and a reply in Suit No.12 of 1976, The second defendant in its defence –

• (1) substantially recites the defence of the first defendant;

• (2) admits that from 1st September 1983 it occupied parcels 79, 147 and 148 and claims that it bought the parcels from the first defendant, and that on that date charged the said parcels to the third defendant to secure repayment of a sum of $227,000 borrowed from the third defendant.

9 The second defendant claims that in consequence of a caution lodged by the plaintiffs in respect of parcels 147 and 148, it could not be registered as proprietor of the said parcels, neither could the charge in favour of the third defendant be registered. The second defendant counterclaims in respect of solicitors fees, costs and damages consequent on the maintenance of the caution.

10 The third defendant denies the plaintiffs' allegations and claims that, on 1st September 1982 when the second defendant executed a charge on Parcels 79, 147 and 148 in its favour, the respective Land Registers disclosed, no entry relating to restriction on dealings with the said parcels. Further, that the Writ of Summons in Suit No.92 of 1982 was issued on 7th October 1982, that is, five weeks after the second defendant had executed the said charge.

11 In a reply and defence to counterclaim the plaintiffs claim that –

• (a) the Instrument of Transfer dated 1st September 1982 purporting to transfer parcels 147 and 148 was wrongfully made and registered, and is incapable of disposing of the parcels of land as it was made in contravention of Section 37 of the Registered Land Ordinance 1970 (No.8 of 1970);

• (b) the charge of parcels 147 and 148 to the third defendant to secure the repayment of a sums of $227,000 was wrongly made and, by virtue of Section 37 of the Registered Land Ordinance, was null and void.

12 The facts are –

13 William Campbell Roy purchased from the Crown pieces of land containing 178 acres which lands were known as Pasea Hall and Fahie Hall Estate situate in the road division of the Island of Tortola in the Presidency of the Virgin Islands and which were conveyed to Mr. Roy by Deed No.39 of 1921 with the following boundaries:

14 On north by lot 72; on east by the line delineated as the Eastern Boundary thereof on the government map of Tortola, dated the 1st day of June 1978, and drawn by George King and published by Robert Wilkinson; on the south by the sea and on the west by Lower Estate.

15 William Campbell Roy and James Skelton (father of defendants in Suit No.12 of 1976) by Deed No.32 of 1920 agreed –

1

The said James Skelton his heirs and assigns agree to relinquish all claim to a certain piece or parcel of land in the Pasea Hall Estate abutted and bounded as follows:- On the north by the public road; on the east by lands of the said James Skelton and divided by a wire fencing running from the public road to the sea; on the south by the sea; on the west by Jackass Ghut and row in litigation between the said William Campbell ‘Roy and himself. 2. And the said James Skelton further agrees to abandon all law suits and other legal matters now pending in the Supreme Court of the Virgin Islands between William Campbell Roy and himself, and not to pursue any further litigation in connection with the said piece or parcel of land in question. 3. The said William Campbell Roy hereby agrees to pay to the said James Skelton the sum of twenty-five dollars British West Indian currency in settlement of his claim to the said piece of land, together with $12.00 (twelve dollars) as compensation for expenses incurred by the...