Fleming v Webster et Al

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Matthew, J.
• Judgment Date: 12 October 1993
• Neutral Citation: AI 1993 HC 1
• Docket Number: No. 44 of 1991
• Date: 12 October 1993

High Court

Matthew, J.

No. 44 of 1991

Fleming

and

Webster et al

Appearances:

Miss Joyce Kentish for Plaintiff.

Mr. D. Mitchel and Miss B. Stephenson for Defendants.

Real property - Land registration — Plaintiff asked for the cancellation of the registration of the defendants — The defendant made an application to alter the adjudication record under s. 22 of the Land Adjudication Ordinance — The authority to correct in a record any error or omission is permissible even after the date when the adjudication record form was completed but it must be done before the adjudication record becomes final — After the final publication of the certificate of finalization of the particular section in accordance with s.23 of the Land Adjudication Ordinance only the court could grant relief under s.24 — The Recording Officer, the Adjudication Officer or any other person had no right to interfere with the final adjudication record — Appeal allowed — Defendants ordered to pay plaintiff's costs to be taxed if not agreed.

Matthew, J.

1 In this action the Plaintiff seeks essentially to recover 3 1/4 acres of land situated at West End which formally belonged to the estate of her grandfather,— Samuel Hodge, who died intestate on August 20, 1926. The said portion of land is alleged to have been sold by Hubbell Hodge, the brother of the Plaintiff, to the First Defendant on or about March 27, 1966.

2 Consequent upon the introduction of the Land Adjudication Ordinance, 1974 and the Registered Land Ordinance 1974 the Defendants obtained provisional title to Parcel No. 28111B9 of the West Central Registration Section as of August 28, 1975.

3 This was the position when the Plaintiff on June 18, 1991 filed her writ of summons. Among the relief sought was a declaration that the land contained and described in Registration Section West Central Block 28111B parcel 9 forms part of the Estate of Samuel Henry Hodge deceased, and that the Defendants hold the said land as constructive trustees for the persons benefically entitled to share in the Estate of the said Samuel Henry Hodge deceased. The Plaintiff also asked for an order that the Registrar of Lands do cancel the registration of the Defendants as registered proprietors of the land in question and to substitute the name of the Plaintiff as Personal Representative of the Estate of Samuel Henry Hodge deceased.

4 By way of defence the Defendants have relied on the Limitation Ordinance Chapter 45 and in particular section 6(3) which states:

“No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims, to that person.”

5 The Defendants have also relied on the provisions of the Land Adjudication Ordinance and the Registered Land Ordinance which will be exam in detail later on.

6 Hubbell Hodge, the Other-party to the contract of sale died November 2, 1991. His aunt, Octavia Hodge, who was the daughter of Samuel Hodge died on September 20, 1972.

7 According to Ronald Webster, Hubbell Hodge approached him to buy a piece of land which he was selling and invited Webster to Long Bay to see the land. Hodge introduced him to Octavia who told Webster he should go ahead and make the deal with Webster. The price for the land was agreed at $15,000.00 EC. Webster said he wrote out a receipt which Hodge signed. Payment was also agreed in the form of $3,000.00 in cash, a generator, a blue second-hand Chevrolet truck and six Miami shutters.

8 The next important event was the Land Registration Project. According to Webster this came into operation in 1974. It is not disputed that Hubbell Hodge was the person who made the claim on behalf of the Estate of Samuel Hodge in accordance with section 6 of the Land Adjudication Ordinance. An Adjudication Record was made of the parcel of land claimed and its number was given as 28111B1. That form was completed on February 8, 1975 and signed by the Recording Officer, John R. Vincent.

9 The evidence reveals that no claim was made by Webster in accordance with the said section 6 of the Land Adjudication Ordinance and according to licensed land surveyor, Cecil Niles, who had working knowledge of the land adjudication system, when the form was completed in respect of parcel 1 the full extent of the land belonging to the estate was given as 27 acres. That record was based on the deed which Samuel Hodge held for the land and so it included the portion which was allegedly sold to Ronald Webster in 1966.

10 On August 12, 1975 the said John R. Vincent completed an Adjudication Record in respect of parcel 28111B9 in the said West Central Section for the owner, James Ronald Webster. In that record the commencement of the date of the possession by the provisional owner is given as January 1, 1975.

11 In paragraph 10 of the Adjudication Record for parcel 28111B1 there is a notation dated August 12, 1975. Cecil Niles stated that the notation was made on the same day that parcel 9 was created.

12 So the facts here are not in dispute. On February 8, 1975 the Adjudication Record for parcel 1 was completed comprising 27 acres approximately. Approximately six months later an Adjudication Record was completed for parcel 9 which seems to have been created out of parcel 1. Cecil Niles explains this to be the reason why the figure of 27 for the approximate area in the Adjudication Record for parcel 1 was crossed out and replaced by “N.D” meaning “not Determined”. The case will turn to a large extent upon whether or not the recording officer was legally authorised to interfere with the Adjudication Record which was completed for parcel 1 on February 8, 1975.

13 Learned Counsel for the Plaintiff submitted that the first defendant never acquired good title to the land contained in parcel 9 under the contract. Counsel submitted that Hubbell Hodge never had good title which he could pass to the land. Counsel was in fact advocating the latin maxim NEMO DAT QUOD NON HABET. Learned Counsel for the Defendants did not respond. I think the submission would be unanswerable if the case rested there. Learned Counsel for the Plaintiff evoked from Icilma Woodley under cross- examination:

14 “I would have been familiar with the common law system of preparing deeds as opposed to the land registration system we have now.” This is sufficient to show that things have changed.

15 Some of the Plaintiff's witnesses also challenged the receipt allegedly signed by Hubbell on March 27, 1966 as well as a deed which was made on January 29, 1975 between Hubbell and Webster. Henry Hodge in particular said under cross-examination that he would say the signatures on both documents, CI and C2, were not Hubbell's.

16 The Plaintiff and/or her witnesses have also denied that Hubbell obtained a truck, generator and Miami shutters from Webster at the relevant time.

17 I find as a fact that Hubbell Hodge did enter into the contract with Ronald Webster and that the latter gave the agreed consideration for the potion of land. I find that this was done with the consent and knowledge of Octavia Hodge. I am not persuaded that there was any undue influence exerted by Webster over Hubbell Hodge and I find that the consideration in March 1966 was a fair one before the escalation of land prices in the island. The evidence to the contrary as regards price of land given by Beryl Fleming and Varian Davis are for periods after March 1966, and as was intimated in evidence it only takes one Rock Star to offer a fancy price for a portion of land and that becomes the supposed fair price.

18 Another important bit of evidence which has caused me to come to the conclusion I have reached is the evidence of Icilma Woodley. I believe that in January 1975 Hubbell Hodge did attend the

19 chambers of Dr. William Herbert and signed the deed in her presence. In my view...