Warren Callwood; Gloria Petersen; Alfredo Callwood JR v Philiciano Callwood
| Jurisdiction | British Virgin Islands |
| Judge | HARIPRASHAD-CHARLES J,Indra Hariprashad-Charles |
| Judgment Date | 18 October 2005 |
| Docket Number | Claim No. BVIHCV2003/0183 |
| Court | High Court (British Virgin Islands) |
| Date | 18 October 2005 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL)
Judgment of Indra Hariprashad-Charles J
Claim No. BVIHCV2003/0183
The following statutory provisions and cases were considered in the judgment of Justice Charles:
1. Sections 135, 136, 146 and 147 (1) of the Registered Land Act, Cap. 229 of the Laws of the Virgin Islands.
2. Hughes v Griffin [1969] 1 WLR 23
3. Buckinghamshire C.C. v Moran [1990] Ch. 623
4. Edwards v Brathwaite (1978) 32 W.I.R. 85
5. Heslop v Burns [1974] 1 WLR 1241
6. Geneva Dammer et al v James Ronald Webster (Civil Appeal No. 1 of 1991) (unreported)-Judgment of the Eastern Caribbean Court of Appeal.
Land — prescriptive title — gift of land to respondent by will — respondent's predecessor in title commencing possession under family arrangement but continuing in exclusive possession for 47 years without permission — adverse possession — intermittent activities insufficient to interrupt possession — intention to possess as owner — appeal from the decision of registrar of lands — Registered Land Act Cap.229 (British Virgin Islands) ss. 135, 136, 146 and 147 (1).
On 5 June 1996, the respondent, Philiciano Callwood made an application pursuant to section 135(2) of the Registered Land Act, Cap. 229 to be registered as owner by prescription of certain lands at Jost Van Dyke which was bequeathed to him by virtue of the Will and Last Testament of his deceased father, Christian Callwood. This was the respondent's second attempt to have the lands registered in his name; the first having failed when the then Registrar declined to hear his application on the grounds that he himself had not been in continuous occupation for 20 years as required by statute although he had alleged that he was claiming through his deceased father and in his own personal capacity since he was born on the lands and has lived there all his life.
When the present application came before the Registrar in February 1997, he declined to hear it on the grounds that the respondent's application was the same which was previously refused in 1987. He however, sought by way of case stated, an opinion of the High Court on legal issues arising from such application. The High Court then directed him to hear the application. On 8 February 2001, the Registrar heard the application and ruled in favour of the respondent and granted the application for prescriptive title.
The appellants have appealed the ruling of the Registrar on essentially three grounds. The principal issue before the court was whether the Registrar was wrong in finding as a fact that the respondent whether by himself, and or through his deceased father was in peaceable, open and uninterrupted possession of the lands for 20 years. In addition, the Registrar had to decide whether the intermittent activities on the lands by the appellants and other family members were sufficient to interrupt prescription.
The appellants contend that the important ingredient of animus possedendi was not satisfied and that Christian Callwood was nothing more but a mere licensee on the lands and therefore, he was not entitled to claim adverse possession.
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(1) That there was ample evidence to show that Christian Callwood was in peaceable, open and uninterrupted possession of the lands as owner for 20 years as required by statute.
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(2) That there is clear indication of an intention by the respondent's father to possess and occupy the lands as owner since he remained in exclusive possession for 47 years coupled with the fact that in his Will in 1985, he bequeathed the lands to his son, the respondent.
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(3) That Christian Callwood entered the lands and remained therein without the permission of any person lawfully entitled to the ownership of the lands unlike the claimant in Edwards v Brathwaite. The law of primogeniture was applicable to the lands at the time.
The case of Edwards v Brathwaite distinguished.
Section 147(1) of the Registered Land Act, Cap. 229 of the Laws of the Virgin Islands (‘the Act’) states as follows:
‘…any person aggrieved by the decision, direction, order, determination or award of the Registrar may, within 30 days of the decision, direction, order, determination or award, give notice to the Registrar…of his intention to appeal to the High Court against the decision, direction, order, determination or award.’
This is an appeal against the ruling of the Registrar of Lands (‘the Registrar’) made on 10 th June 2002.
Litigation leading to this appeal has been on foot for nearly 2 decades. On 5 th June 1996, the respondent, Philiciano Callwood a.k.a. Foxy made another application to the Registrar pursuant to section 135 (2) of the Registered Land Act, Cap. 229 to be registered as owner by prescription of parcel 65 (‘Bellevue lands’) and parcels 89, 90 and 91 (‘Hungry Hill lands’) of Block 1440A Jost Van Dyke Registration Section. This is almost 10 years after he had made a similar application in respect of the said lands claiming through his deceased father, Christian Callwood whom he alleged to have been in uninterrupted possession of the lands for more than 47 years. The then Registrar declined to hear the application on the grounds that the respondent himself had not been in continuous occupation of the lands for 20 years as required by statute.
In accordance with section 137 (1) of the Act, a notice of the application was issued on 26 th August 1996. By notice dated 11 th September 1996, Gloria Petersen, Alfredo Callwood Jr. and Warren Callwood (‘the appellants’) voiced their objections to the registration of the lands in the name of the respondent by prescription. As required by law, a hearing was convened.
On the date of the hearing in February 1997, the Registrar declined to hear the application on the grounds that the respondent's application was the same as was previously refused in 1987.
Pursuant to section 146 of the Act and by way of case stated, the Registrar sought the opinion of the High Court on legal issues arising from the application. This resulted in the High Court directing him to hear the application for registration of title by prescription. 1
On 8 th February 2001, the Registrar heard the application. Both parties were represented by eminent Counsel. On 10 th June 2002, the Registrar ruled in favour of the respondent and granted the application for prescriptive title to the lands in question. The appellants have appealed against this decision on 3 grounds namely:
The respondent's case
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1) The decision of the Registrar is against the weight of the evidence.
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2) The Registrar, in arriving at his decision, failed to give any consideration to the very important principle, namely the time when the late Christian Callwood formed the intention to dispossess his family members of the property; and
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3) Christian Callwood was a family member and as such, is presumed a licensee and was not entitled to claim adverse possession.
The respondent, Philiciano Callwood gave evidence that he was born on 27 th September 1938. His deceased father, Christian Callwood was one of the children of Esther Callwood who died intestate in Jost Van Dyke in or about 1939. During her lifetime, she was the owner of 2 parcels of land namely:
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a) A parcel of land situate on the Island of Jost Van Dyke (commonly known as ‘Hungry Hill’) which measures approximately 36 acres and is now described in the Land Register as Parcels 89, 90 and 91 of Block 1440A of the Jost Van Dyke Registration Section (‘Hungry Hill’) and
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b) A lot of land (commonly known as ‘Belle Vue’) situate on the Island of Jost Van Dyke which measures approximately 1 acre and is now described in the Land Register as Parcel 65 of Block 1440A of the Jost Van Dyke Registration Section (‘Belle Vue’).
The respondent deposed that after the death of his grandmother in 1939, his father, his mother, Romalia Callwood and himself remained in possession and occupation of the said lands. He alleged that his father remained in open and peaceful occupation of the said lands as owner for an uninterrupted period of upwards of 47 years until his death in 1986. During the course of his occupation of the lands, his father built and with his family occupied houses on the lands, grew crops and reared animals thereon, fenced the lands with wooden posts and barbed wires and paid all the taxes in respect of the lands out of his own pocket.
The respondent stated that in 1966, with his father's permission, he constructed upon lands at Hungry Hill and has since maintained and operated a restaurant, bar, gift shop and business complex known as Foxy's. His father remained in peaceful, exclusive and uninterrupted possession of the lands for 47 years but neglected to make formal application to be registered as owner of the said lands before he died. On 8 th September 1986, his father died at Jost Van Dyke, leaving a Will dated 17 th October 1985 in which he bequeathed all lands to him. The Will was admitted to probate on 9 th February 1987.
The respondent testified that since the death of his father, he remained in peaceable, open and uninterrupted possession of the lands as owner in his personal capacity and as personal representative and executor of the Will of his deceased father.
The respondent was extensively cross-examined. He admitted that Gloria Petersen, Lyra Parsons, Arnold Callwood and Allen Callwood are all family members and that occasionally, his father gave them produce from the lands or permitted them to pick fruits. He also asserted that his father paid all the taxes on the lands and thereafter, he paid. He was unable to...
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