Richardson and Hodge v Brooks and Richardson

• Jurisdiction: Anguilla
• Judge: George-Creque, J.
• Judgment Date: 02 June 2006
• Neutral Citation: AI 2006 HC 10
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Docket Number: AXAHCV/2005/0001
• Date: 02 June 2006

High Court

George-Creque, J.

AXAHCV/2005/0001

Richardson and Hodge

and

Brooks and Richardson

APPEARANCES:

Mr. Clyde Williams and Mrs. Navine Fleming Kisob instructed by Messrs. Joyce Kentish & Associates for the claimants.

Ms. Paulette Harrigan for the defendants.

Real property - Registration of title — Transfer

George-Creque, J.

1 This action concerns a parcel of land situate in an area known as Rock Farm, in Anguilla, purportedly transferred twice by the Second named claimant, (“SH”) as Transferor, on separate occasions to two different Transferees namely, the First claimant (“RR”) who holds an executed but unregistered Transfer, and the First defendant (“KB”) who is now registered as proprietor on the Land Register pursuant to a later executed Transfer which was registered by him on 20th April, 2004. The Land is described on the Land Register of Anguilla as Parcel 216 Block 48713, Registration Section, North Central (“the Disputed Land”). The Transfer to RR dated 11th November, 2003 was by way of gift from SH, the grandfather of RR. The Transfer to KB is by way of sale from SH to KB.

2 The Court heard evidence from five witnesses on behalf of the claimants, namely, SH, the original owner of the Disputed Land, Hertha Richardson, the daughter of SH, and who lives more or less in the general vicinity of the Disputed Land, RR the son of Hertha Richardson, Cecil Niles, licensed Land Surveyor, who was charged with the survey and subdivision of Parcel 212 out of which the Disputed Land came, and Emerson Reid, a purchaser of lots created flowing from the subdivision. The defendants gave evidence and also Ambrose Gumbs, Noreen Hodge, and Karl Smith on their behalf. A visit to the locus was also made to determine general locations and reference points from the house identified as SH's father's house, Hertha Richardson's house and the house in which KB resided in relation to the Disputed Land and the access road thereto, from the secondary main public road.

The relief claimed

3 The claimants seek primarily to set aside the Transfer to KB on the ground that same was procured by misrepresentation on the part of KB through the Second defendant (“GR”) who they assert acted as KB's agent, or alternatively, due to mistake made by SH which was known to the defendants in that SH contends that the land he intended and believed he had transferred to KB was Parcel 218 another parcel of land owned by SH in the same general vicinity of Parcel 216 and also flowing from the subdivision. They also seek ancillary declaratory and other relief. KB contends that he is a bone fide purchaser for value, who at all times acted in good faith and both defendants deny that there was any misrepresentation to SH or that he was in any way mistaken as to the parcel of land he was selling and did sell to KB. KB, by way of counterclaim, also seeks declaratory relief, or alternatively, damages for breach of contract. GR denies that he was acting as agent for KB.

4 I now set out a summary of the facts giving rise to this action in so far as the same are not in dispute and otherwise are to be treated as findings of fact on the evidence. Whilst mention may not be made of evidence given by every witness, all the evidence has been considered but reference made to those witnesses where I considered their evidence relevant to the determination of the issues in dispute.

• (a) SH, an Anguillian, resident in Ontario, Canada, owned a parcel of land in Anguilla then registered as Parcel 212, Block 48713B of the North Central Registration Section. Sometime in 2003, during one of his visits to Anguilla, having decided to subdivide Parcel 212 and dispose of various portions thereof, he commissioned Mr. Cecil Niles, a licensed Land Surveyor, to carry out and effect the subdivision of the parcel into seven (7) lots. He decided to give a portion thereof to his grandson RR and to sell off other portions. He gave instructions to Mr. Niles to prepare transfers for a lot measuring 0.25 of an acre for transfer to RR, and for another lot of similar size to one Joan Duncan by way of sale.

• (b) A transfer was prepared in favour RR of Lot 1 which became, upon registration of the subdivision plan, Parcel 216 (the Disputed Land). Lot 7 on the sub division plan, which became Parcel 219, was transferred to Joan and Monique Duncan and is dated also as of the same date as the transfer to RR (i.e. 11th November, 2003). Joan and Monique Duncan are registered in respect thereof.

• (c) Lots 2, 4 and 5 on the plan were combined by the surveyor, for the purpose of sale of those three lots combined, to Emerson Reid. These three (3) lots combined, became Parcel 217 and a transfer to Emerson Reid was executed dated as of 4th December, 2003. Emerson Reid is registered in respect thereof. Lot 3 comprises a 15-20 right of way for the benefit of the lots in the subdivision and Lot 6 became Parcel 218. Parcel 218 is still registered in the name of SH.

• (d) It does not appear that the transfer to RR of the Disputed Land was submitted firstly for the assessment of stamp duty until sometime in February, 2004. It is not clear as to when it was submitted for registration, but by 27th April, 2004, KB had already obtained registration in his name in respect of the Disputed Land pursuant to the transfer he had obtained.

• (e) KB who was interested in finding land to purchase, on making inquiries, came to understand that SH was selling land. One Ambrose Gumbs told him this. He then met GR and they had a discussion about lands SH was selling. GR telephoned SH who at that time was in Canada and they talked about the sale of land to KB. As to whether the land intended to be sold to KB was described as being “west” of SH's father's house or “southwest” thereof is a fact in issue in these proceedings since the sale was by reference to a location or direction with SH's father's house being the reference point in respect of its location.

• (f) SH's asking price for the land to be sold to KB was US$ 24,000.00 but eventually a cheque in the sum of US$22,000.00 was sent by KB to SH (which he accepted) along with the Transfer documents prepared at the instance of KB and delivered by the hand of GR when he travelled to Canada. SH, in the presence of a Notary Public, executed the Transfer documents in respect of the Disputed Land.

• (g) KB presented the land transfer for registration with a consideration stated thereon as US$15,000.00 and not $22,000.00 which was in fact paid therefor.

• (h) KB commenced clearing the Disputed Land sometime in September 2004 and began his development thereon sometime in November when a preistman was brought in to excavate the land. The first sign of a problem manifested itself with the blocking of the access road to the Disputed Land with the use of a vehicle placed there by RR's father. KB, assuming that it was because he had blocked the right of way with a mound of dirt from the excavation and clearing of the Disputed Land, gave instructions for the removal of the dirt and continued with his development activities as no one had come forward and made known to him the Disputed Land was being claimed by another.

• (i) On 28th December, 2004, KB by letter from RR's solicitors became aware of RR's interest in the Disputed Land. KB then instructed his solicitor to write to SH who was then on island inviting him to discuss the matter. Nothing came of these discussions.

• (j) The claimants applied for and obtained on 17th January, 2005 an interim injunction against the defendants restraining them from entering, making use of or altering the physical appearance of the Disputed Land. On 25th February, 2005, on hearing cross applications it was determined that the interim injunction ought to remain in place pending the determination of the action at an early trial fixed then for 17th and 18th May, 2005. These dates did not prove achievable by the parties and the matter thus came on for trial in January, 2006.

5 The First defendant also contend that given the time which elapsed from when the claimants knew or ought to have known of his presence on the Disputed Land given his development activities thereon, before making their interest known, that it would be inequitable to deprive KB of the Disputed Land and more equitable that RR take Parcel 218 in place of the Disputed Land.

The Issues

6 The List of issues agreed between the parties for the Court's determination were in essence stated as follows:

• (1) Whether the Transfer to KB takes priority over the Transfer to RR under the Registered Land Act 1 (“the Act”);

• (2) Whether SH knowingly or recklessly transferred Parcel 216 (the Disputed Land) to KB;

• (3) Whether KB is a bona fide purchaser for value without notice under section 38 of the Act;

• (4) Whether SH made a unilateral mistake with regard to the parcel of land that he was selling to KB;

• (5) Whether KB and or GR knew of SH's mistake or alternatively whether KB and or GR caused such mistake or substantially contributed to it by their act, neglect or default within the provisions of section 140 of the Act;

• (6) Whether KB and or GR fraudulently misrepresented to SH the parcel of land which was to be sold;

• (7) Whether GR was the agent of KB and if so at what point of the transaction and if so whether KB ratified the actions of GR;

• (8) If GR was KB's agent whether GR acted with KB's apparent authority.

• (9) If GR fraudulently misrepresented to SH the land being sold, whether he was acting under the authority of KB;

• (10) Whether the Transfer to KB should be set aside for fraudulent misrepresentation.

• (11) Whether RR acquiesced by doing or saying nothing when he knew or ought to have known that KB had taken possession of the Disputed land and acted to his detriment in commencing development thereon.

7 At the onset of the trial, counsel for the claimants noted that a specific prayer claiming...