Buffong v The Accountant General

• Jurisdiction: Anguilla
• Judge: Satrohan Singh, JA.,Singh
• Judgment Date: 03 July 1995
• Neutral Citation: AI 1995 CA 5
• Docket Number: Civil Appeal No. 7 of 1994
• Date: 03 July 1995
• Court: Court of Appeal (Anguilla)

Court of Appeal

Singh and Byron, JJA

Civil Appeal No. 7 of 1994

Buffong

and

The Accountant General

Mr. D. Mitchell for the appellant

Mr. Stanley Reid for the respondent

Real property - Stamp Duty — Whether the appellant was entitled to pay stamp duty on the market value of the property or on the price paid for the property — An alien purchased land for $1,800 and took possession of it — Appellant required to obtain an alien'slandholding licence — Aliens Landholding Regulation Ordinance No. 12 of 1976 — Appellant built a house on the property before he obtained the licence — The value of the property increased to $6,000 — Stamp duty was demanded on the increased value of the property by the Treasury Department — Duty was paid by the appellant — Section 9(1) of Stamp Duty Act, Cap. 257 — Stamp duty should be collected as 5% of the price paid and 10% of the market value of the property — Appellant entitled to refund of excess paid — Appeal allowed.

Satrohan Singh, JA.

1 The appellant is a Montserratian and is therefore an alien to Anguilla. In September, 1987 he purchased 0.06 acres of land in Anguilla for EC$1800 and took possession thereof. He and the vendors did not at that time execute an instrument of transfer because the appellant, being an alien to Anguilla, was required to obtain an alien'slandholding licence under the Aliens Landholding Regulation Ordinance No. 12 of 1976, to permit him to hold land in Anguilla. This licence was issued to him on August 23, 1991. However, after he took possession of the property in 1987 and before the licence was issued, he constructed a two bedroom concrete house on the property which it is accepted enhanced the value of the property to some $60,000.

2 Having obtained the licence, the appellant and the vendors on August 29, 1991 executed the instrument of transfer thereby conveying to the appellant the said 0.06 acres of land “as of this 25 ^th day of September, 1987”. The land transfer form and the alien'slicence were submitted by the appellant to the treasury department. The appellant when he submitted these documents thought that the duty payable thereon would have been on the $1800 he paid for the land. Instead, the treasury demanded duty on $60,000: being the value of the land with the building thereon. It was accepted by both sides during the arguments that in arriving at the valuation of $60,000: the value of the land alone remained at $1800: and that the $60,000 was arrived at as a result of the building being thereon. The appellant paid that duty. But, being dissatisfied with the assessment, he appealed against it and at his request the respondent stated a case before MATTHEW J wherein the learned judge was asked to give an opinion on the following four questions:

• “1. Whether the relevant date of the instrument of transfer for the purposes of the assessment of stamp duty is the date of Execution of the instrument, or the date of registration of the instrument or some other date.

• 2. Whether the instrument of transfer is liable to stamp duty on the basis assessed by the defendant, that is to say, calculated upon the market value of the land on August 29, 1991.

• 3. Whether the licence in respect of the land is liable to stamp duty calculated upon the market value of the land on August 29, 1991.

• 4. If not, to what duty, if any, are the aforesaid instruments liable”.

3 The learned Judge on October 17, 1994 answered the questions as follows:

“My answer to the questions referred are as follows:

• 1. I hold that the relevant date of the instrument for the purposes of the assessment of stamp duty is the date of execution of the instrument which in this case was August 29, 1991.

• 2. I further hold that the instrument of transfer is liable to stamp duty calculated upon the market value of the land on August 29, 1991.

• 3. I also hold that the aliens land holding licence in respect of the said land is liable to stamp duty calculated upon the market value of the land on August 29, 1991.”

4 He made no order as to costs.

5 As I understand the learned judge'sjudgment, the words “market value” in his second and third answers meant the value of the property on August 29, 1991 inclusive of the building thereon. From the grounds of appeal filed and from the appellant'sskeleton arguments, the appellant seems to be agreeing with answers Nos.1 & 3 but not with answer No.2. The appellant in relation to this answer, contends that the 5% Stamp Duty payable on the instrument of transfer should be on the market value of land only, as of August 29, 1991 and not on the market value of the land with the building thereon. That then is the real issue in this appeal. If the Court agrees with the appellant on this issue, then an ancillary issue would be what should be that valuation.

6 S9(1) of the Stamp Duty Act of Anguilla, Cap. 257 provides as follows:

“Subject to the exceptions contained in the schedule, and in any other Act or Ordinance for the time being in force, there shall be charged for the use of Her Majesty, Her heirs and Successors, upon the several instruments specified in the Schedule, the several duties in the said Schedule specified and no other duties……”

7 Item 26 of The Stamp Act (Amendment) Ordinance, 1987 reads:

CONVEYANCE or TRANSFER on sale of any property (….) — 5% of the value of the property conveyed or transferred”.

8 The language used in item 26 is clear and unambiguous. In my view, it limits the 5% duty to property that has been sold, and is to be conveyed or transferred. The property that was sold and had to be conveyed or transferred in this matter was the land bought by the appellant. The building thereon was not the subject of any sale. There was therefore no necessity for the building thereon to be conveyed or transferred. It was put on the land by the appellant after the appellant had purchased the land and had taken possession thereof. In my...