Emanuel Webster v Khamal Vere Hodge

• Jurisdiction: Anguilla
• Judge: Pereira CJ
• Judgment Date: 27 April 2023
• Judgment citation (vLex): [2023] ECSC J0427-1
• Docket Number: AXAHCVAP2020/0002
• Court: Court of Appeal (Anguilla)

Between:

Emanuel Webster

Appellant

and

[1] Khamal Vere Hodge

[2] Patricia Harding-Hodge

[3] Valencia Hodge

Respondents

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Margaret Price-Findlay Justice of Appeal

The Hon. Mr. Trevor Ward Justice of Appeal

AXAHCVAP2020/0002

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil appeal — Partition of land held in common — Application form for partitioning land held in common — Grounds for the rectification of the land register — Fraud — First respondent's failure to appear before third respondent when he certified the application form — Whether the register ought to be rectified on the ground of fraud due to the alleged false certification on the application form — Damages for fraud — Whether actual fraud pleaded and proved by appellant to warrant an award of damages — Mistake — Application form bearing a date different to the date form actually signed — Whether the mistake on the application form warrants rectification of the register — Exclusive ownership of partitioned land — Section 109 of the Registered Land Act — Whether under section 109 of the Registered Land Act a partition of land formerly held in common is sufficient to bestow ownership of individual parcels on proprietors who formerly held land in common — Trespass to land — Exemplary damages — Aggravated damages — Whether the learned judge erred by failing to award exemplary and aggravated damages to the respondents

Mr. Emanuel Webster (“Mr. Webster”) and Mr. Khamal Vere Hodge (“Mr. Khamal Hodge” or “Mr. Hodge”) were registered as proprietors in common of ³/₄ share and ¹/₄ share respectively of Parcel 29 Block 48841B North Central Registration Section, Anguilla (“Parcel 29”). On or about 13 ^th February 2006, by form R.L.16 of the Registered Land Act (“RL16”), Mr. Webster lodged an application for a partition of Parcel 29 into four lots. The application was signed by Mr. Webster and Mr. Hodge and was certified by Mr. Valencia Hodge (“the third respondent”) in his capacity as a Notary Public. The application also included an illustration of the map sheet with a note which read ‘Lot 2 to K. Vere Hodge’.

Four new parcels were created by the partition, becoming Parcels 231, 232, 233 and 234. Mr. Khamal Hodge was registered as the sole proprietor of Parcel 232 representative of his ¹/₄ share in the original Parcel 29. Mr. Webster was also registered as the sole proprietor of the other 3 parcels, namely, Parcels 231, 233 and 234, representing his ³/₄ ownership in the original Parcel 29. Shortly after the partition, Mr. Webster sold Parcel 231 to Happy Island Ltd. and they became the registered proprietor of Parcel 231. Mr. Webster then applied for and obtained the amalgamation of the remaining two parcels, Parcels 233 and 234, which, on amalgamation, became Parcel 236. Around 2007, Mr. Webster constructed a commercial complex and gas station on Parcel 236, which he rented to Delta Petroleum (Anguilla) Ltd. During construction, he used a part of Parcel 232 as an entry to Parcel 236. He averred that when construction was completed, the access was improved by paving the entrance to the gas station with asphalt and maul surfacing the entrance to the commercial complex. This, Mr. Hodge contends, was done with his permission and by way of oral licence to Mr. Webster, for the limited purpose of accessing the gas station.

This state of affairs continued for approximately 11 years without Mr. Webster or Mr. Hodge questioning the sole ownership of the other. However, in December 2017, Mr. Hodge terminated the licence given to Mr. Webster to pass over the portion of Parcel 232. Mr. Hodge and his parents, the second and third respondents, say permission was terminated as a result of abuses of its use by Mr. Webster. After revoking the licence, the respondents erected a barricade and dug up a trench on Parcel 232 to prevent Mr. Webster or his patrons from accessing it. Mr. Webster thereafter tore down this barricade and refilled the trench to allow him and his patrons to continue to use the access on Parcel 232. He then applied for and obtained an interim injunction in the High Court restraining the respondents from disrupting the access.

Mr. Webster then commenced a claim in the lower court seeking rectification of the land register on the grounds of fraud and/or mistake and an order declaring that he was the owner of Parcel 232. He contended that there was no agreement for the sale of a ¹/₄ share in Parcel 29 and that the respondents had not provided consideration for that share. He also contended that there had been a false certification of the form which transferred Parcel 29 to him and Mr. Hodge. Further, he averred that when he signed the application for partition, Mr. Hodge's name was not on the form and that he (Mr. Hodge) came to be the registered proprietor of Parcel 232 by way of fraud. In the alternative, Mr. Webster pleaded that Mr. Hodge was estopped from denying him access to the right of way. The respondents counterclaimed alleging that Mr. Webster had trespassed on Parcel 232 along with his servants and/or agents by removing the barricade they erected and refilling the trench. As a result, Mr. Hodge suffered loss and damage as he had to incur the expense of excavating the trench all over again and re-erecting the barricade. They accordingly claimed damages against Mr. Webster in respect of the trespass and the resulting loss.

The judge held that there was no fraud or mistake and accordingly there was no basis for rectification of the land register for Parcel 232. He also found that there was no fraud in the partition of Parcel 29 and that Mr. Hodge had been rightfully registered as the proprietor of Parcel 232. As to the right of way or access over Parcel 232, the judge held that the licence granted to Mr. Webster had been revoked and that in any event, Mr. Webster had an alternative access over Parcel 236 which was just as convenient. The judge, having found that Mr. Hodge was a co-owner together with Mr. Webster in respect of the original Parcel 29, which had been subsequently partitioned giving effect to their respective share in that parcel, dismissed Mr. Webster's claim. Moreover, having found that the licence to Mr. Webster had been revoked, he held that the respondents had made out their claim in trespass and awarded them US$1,500.00 in special damages and US$2,500.00 in general damages. He was not satisfied however that the respondents had established a case for an award of exemplary or aggravated damages.

Being dissatisfied with the judge's ruling Mr. Webster appealed and, being dissatisfied with the award of general damages, the respondents cross appealed. The essential issues which arose for determination on appeal were: (i) whether the issue of fraud in the partition of Parcel 29, specifically the alleged false certification of the RL16 form and the consequences flowing therefrom, were raised and fully ventilated in the court below; (ii) whether there are grounds for rectification of the land register; (iii) whether Mr. Webster is entitled to damages for fraud; (iv) whether the partition of Parcel 29 was sufficient to bestow separate parcels of land on Mr. Webster and Mr. Hodge; and (v) whether Mr. Webster's trespass on Parcel 232 warranted an award of exemplary or aggravated damages.

Held: dismissing the appeal and the counter-notice of appeal and awarding costs of the appeal, costs of the application for interim relief and costs of the application to strike out in accordance with the order of Ramdhani J dated 13 ^th April 2018 to the respondents, and awarding costs of the counter-notice of appeal to the appellant, such awards of costs to be assessed by a judge or master of the High Court if not agreed within 21 days, that:

• 1. Upon reading Mr. Webster's Statement of Claim filed in the lower court, it cannot be said that the assertion that he and Mr. Hodge owned all the parcels emanating out of Parcel 29 as proprietors in common in their original shares of ³/₄ and ¹/₄ respectively, was ever pleaded and put before the judge. Instead, Mr. Webster seemed to argue that Mr. Hodge owned no share in Parcel 29 and consequently none in the subdivided Parcel 232. The consequence of this is that the issue of fraud in the partition of Parcel 29, specifically the alleged false certification of the RL16 form and the consequences flowing therefrom, w ere never raised in the lower court. Accordingly, it cannot be said that the learned judge erred in failing to determine an issue which was not properly put before him.

• 2. Under section 146 of the Registered Land Act, the register may be rectified for fraud. However, what must be proved is actual fraud which entails some deliberate act, misrepresentation or concealment of facts by a person in the process of registering land ownership. The acts must be deliberately aimed at swindling the rightful owner out of some unregistered right or interest. Intention to defraud is therefore necessary. On the facts, the alleged false certification of the RL16 form by Mr. Hodge can amount to no more than an irregularity for the purposes of fraud and rectification of the register. Despite Mr. Hodge's admission that he did not appear before the third respondent to certify the RL16 form, the fact is that when the transactions in relation to Parcel 29 began, he was under the age of 18 and his parents were acting on his behalf. Moreover, the third respondent was Mr. Hodge's father. Mr. Hodge and Mr. Webster intended that Parcel 29 be partitioned and these were matters known to all the parties. On the evidence, it therefore cannot be said that a case of actual fraud was made out by the appellant to warrant the rectification of the register and nullify the partition of Parcel 29.

  Section 146 of the Registered Land Act Revised Statutes of Anguilla, Chapter R30 applied; Assets Co Ltd v Mere Roihi ...