Zieglar et Al v Macshane

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Joseph, Monica J.
• Judgment Date: 12 April 1984
• Neutral Citation: VG 1985 HC 1
• Docket Number: Civil Suit no. 70 of 1980
• Date: 12 April 1984

High Court of Justice

Joseph, J

Civil Suit no. 70 of 1980

Zieglar et al

and

Macshane

Appearances:-

Mr. M.D. Riegels for plaintiffs.

Mr. J.S. Archibald, Q.C. and Mr. G. Farara for defendant.

Real Property - Registration — Rectification.

Practice and Procedure - Writ — Amendment.

Facts: The first and second defendant were executors and trustees of the will of R.L., the third plaintiff was beneficiary and life tenant of his property. The defendant and her husband sold property to R.L. The property was damaged by fire during R.L.'s absence from island. The defendant made a claim to the Adjudication Officer for the whole property including that sold to R.L. The defendant contended that R.L. told her she could do whatever she wished with the land and that since 1974 she was in open, peaceable and exclusive possession of the land to the knowledge of the plaintiffs and R.L.

Facts: The defendant and her husband sold property to R.L. The defendant subsequently made a claim to the Adjudication Officer for the whole property including that sold to R.L. The plaintiffs sought an order for rectification of the land register. The third plaintiff described herself as executrix of the estate of R.L. when in fact she was a beneficiary. The writ was subsequently amended. The first and second plaintiffs names were also added as executors for the estate. It was contended by defendant that action was incomplete at the date of issue of the writ as the third plaintiff purported to her in a representative capacity.

Held: The Adjudication Officer was mistaken in holding that defendant was owner of property. The mistake was induced or contributed to by defendant. There was no acquiescence since the plaintiffs were aware of a violation of their legal rights. Rectification of land register ordered.

Held: Defendant had consented to amendment. The writ could be amended to add parties.

Joseph, Monica J.

1 The plaintiffs claim –

• (1) Richard Luddington (deceased) in 1970 acquired a freehold title to parcels 28 and 29 Block 2333 B Mount Sage section (previously parcel 4 of Block 2333 B) Units 5 and 6 at Fort Recovery, Tortola, by deed of conveyance No. 549 of 1970 from Donald MacShane (defendant's husband) and the defendant.

• (2) The defendant knowingly and fraudulently by a claim dated 31st October 1973, claimed and/or accepted title to the entire property as her own under the provisions of the Land Adjudication Ordinance, 1970, producing in support of her claim, deed No. 311 of 1972, by which the defendant's husband conveyed to the defendant all his interest in the property of which the plaintiff's land is part: and failing to produce and to bring to the attention of land registration authorities deed No. 549 of 1970, in favour of the plaintiff's husband. Alternatively, that the entry in the Land Register was made by mistake.

2 The plaintiffs seek an order for rectification of the Land Register as provided by section 140 of the Registered Land Ordinance in respect of parcels 23 and 29.

3 The defendant –

• (1) denies the allegation of fraud or mistake and claims that Richard Luddington told the defendant that he had made a claim for compensation from his insurers following a fire that destroyed the property: that upon receipt of the compensation, he would have no further interest in the land and she could do whatever she wished with the land;

• (2) claims that from 1974, she has been in open, peaceable and exclusive possession of the land to the knowledge of the plaintiffs and Richard Luddington;

• (3) in October 1975, commenced construction of two apartments, completing them in 1979, to the knowledge of the plaintiffs without interruption or claim by the plaintiffs or any person.

4 The defendant alleges that the plaintiffs' claim is not maintainable owing to laches, acquiescence and delay on the part of the plaintiffs, and that the plaintiffs are jointly and severally estopped from saying that the land which they claim is part of the estate of Richard Luddington.

5 The defendant claims that in 1974, she was granted absolute title of the land by the Adjudication Officer and there was no appeal from his decision. The defendant also claims that the plaintiffs are not entitled to hold land in the British Virgin Islands.

6 A number of applications were made to amend the Statement of Claim: one of these applications was made on 29th March 1953, on which date, costs of and occasioned by the amendment were ordered to be paid by the plaintiffs in any event.

7 I find the following facts:

8 The third named plaintiff was married to Richard Luddington, who died on 30th September 1976. In his will he named the first end second named plaintiffs as executors and trustees, and the third named plaintiff as a beneficiary and life tenant of his property.

9 In January 1970, Richard Luddington purchased units 5 and 7 at Fort Recovery, West End, Tortola (the property) from the defendant and her husband Donald McShane for a sum of $47,000. The property was conveyed to him on the 10th April 1970, (at that time the third named plaintiff and Richard Luddington were in Tortola, but were not married). The third named plaintiff and Richard Luddington left Tortola in June 1970, returning in January 1973, (they were then married) and after a stay of one month, they left again. By deed of conveyance No. 311 of 1972, Donald MacShane and the defendant conveyed a parcel of land at Fort Recovery to the defendant.

10 About four months after the third named plaintiff and Richard Luddington left Tortola, the third named plaintiff saw a telegram that Sam Pemrose had sent to her husband, informing him that the property had been damaged by fire. Sam Pemrose, having been authorised by Richard Luddington, negotiated a settlement of $36,000 with the insurance company.

11 By a claim signed on 27th April 1973, Virgin Islands National Bank claimed an interest in the property of the defendant at Fort Recovery, in respect of a mortgage in the sum of $33,000.00, made on 14th April 1972, and a further charge in the sum of $5,094.00, made on 28th February 1973.

12 By a claim form signed on 31st October 1973, the defendant made a claim to the Adjudication Officer for 1 acre of sea front and 1(acres of an area above the road of property of Fort Recovery. Although the form required a claimant, where the land is owned by more than one I person, to state the names and addresses of the other owners, the defendant failed to do so.

13 The third named plaintiff stated that no claim was made to the Adjudication Officer under the Land Adjudication Ordinance, as her husband did not know he was required to make a claim. The Adjudication Record dated 25th March 1974, recited the name of the defendant as owner.

14 In 1976/1977, valuation, of the property was done by the Real Estate firm of Smith Gore of Tortola, for the purposes of having Richard Luddington's will probated. In 1977, the defendant commenced construction of apartments on the property and completed them in 1979. The units owned by Richard Luddington were physically enclosed by the defendant's units.

15 In January 1980, the third named plaintiff, upon receipt of certain information from Sam Pemrose, who was visiting Tortola at the time, instructed solicitors, and a letter dated 31st January 1980, was addressed to the Registrar of Lands, requesting that a restriction be entered prohibiting any dealings with the property.

16 By letter of 14th February 1980, solicitor for the plaintiffs wrote the Registrar of Lands informing him that he would have no...