Webster et Al v Fleming

• Jurisdiction: Anguilla
• Judge: Byron J.A.
• Judgment Date: 08 May 1995
• Neutral Citation: AI 1995 CA 2
• Docket Number: Civil Appeal No. 6 of 1993
• Court: Court of Appeal (Anguilla)
• Date: 08 May 1995

Court of Appeal

Byron, J.A. Singh, J.A. Joseph, J.A. (Ag.)

Civil Appeal No. 6 of 1993

Webster et al

and

Fleming

Mr. Joseph Archibald, Q.C. and Ms. Bernie Stephenson for the appellants

Miss Kentish for the respondent

Practice and procedure - Whether the High Court could lawfully adjudicate on the acts of the Recording Officer in the judicial process under the Land Adjudication Ordinance where such a power was statutorily reserved to the High Court by way of appeal within the specified time — Section 24(1) of the Land Adjudication Ordinance conferred an appellant jurisdiction on the High Court which is limited to appeals against the acts and decisions of the Adjudication Officer and within a limited time — This was not the case in this instance — Whether the High Court could lawfully interfere with the first registration in the name of the first-named appellant or the second registration in the names of the appellants in the absence of an appeal to the High Court as aforesaid or on proof of mistake or fraud — Section 140 of the Registered Land Ordinance 1974 — There was a registration by mistake which could be rectified under s. 140(2) of the Registered Land Ordinance — Appeal dismissed.

Byron J.A.

1 This is an appeal against the decision of Matthew J. delivered on 12th October 1993, in which he ordered the cancellation of the registration of the appellants as registered proprietors of the portion of land registered in the registration section West Central Block 28111B Parcel 9 and ordered that the said land be registered in the name of the respondent. This order followed his finding that the Recording Officer had acted contrary to law in adjudicating Parcel 9 to the first-named appellant after the certificate of finalisation of the West Central Section had already been published.

2 The appellant s notice of appeal contained 6 grounds which in summary challenged the decision on the basis that more than 16 years having elapsed from the first registration, the combined effect of the Land Adjudication Ordinance, 1974 and the Registered Land Ordinance, 1974 made the appellant'stitle indefeasible except for fraud or mistake, and made these proceedings an unlawful attempt to appeal outside of the time limited by statute.

3 The respondent cross-appealed against the failure of the learned trial judge to declare that having regard to the doctrine nemo dat quid non habet the appellants acquired no lawful title to or interest in the land contained in Parcel 9 under the contract of sale between Hubbell Hodge and the first-named appellant.

The Invalid Sale

4 The findings of the learned trial judge were that in 1966 one Hubbell Hodge [now deceased] entered into an agreement for the sale of a parcel of land to the first-named appellant and gave him a signed receipt in the sum of $15,000.00, and on 29th January 1975 executed a deed of conveyance, in respect of the said sale, in which the consideration was stated to be $3,000.00. The learned trial judge went on to find that Hubbell Hodge did not have the right to sell the land because it belonged to the estate of his late grandfather Samuel Hodge, who had died intestate in 1926. The estate had remained unadministerable until the respondent was appointed administratrix in 1981. She did not assent to the vesting of title in either Hubbell Hodge or the first-named appellant. The sale was therefore of no effect and the deed of conveyance did not pass title of the land to the first-named appellant.

5 I think that despite these findings the learned trial judge was right to consider that the change in the system of land registration, effected by the Registered Land Ordinance 1974, establishing title to land by entry on the land register made it a futile exercise for him to make the declaration sought by the respondent. I would therefore dismiss the cross-appeal. I would make no order as to costs because this conclusion follows from the determination of the appeal, and it would seem reasonable for costs to follow that event.

The Title by Prescription

6 The learned trial judge found as a fact that the appellants had not been in possession adverse to the respondent so as to acquire any prescriptive title. He found that the evidence of possession was insubstantial and had not demonstrated that they openly treated the land as their own to the exclusion of all other persons.

7 There was no appeal against this finding.

The Registration as Proprietor

8 In 1974 Hubbell Hodge made a claim in the Land Adjudication process on behalf of the estate of Samuel Hodge deceased. The undisputed evidence was that no claim was made by the first appellant, or anyone else on his behalf, in respect of that land. The omission was not necessarily fatal because the Land Adjudication Ordinance, section 9[1] gives the relevant officers power to proceed as if a claim had been made if satisfied that a person who has not made a claim has a claim to an interest in land within the adjudication section.

9 On 8th February 1975 a parcel of land, with boundaries demarcated after survey, containing 27 acres was adjudicated with absolute title to the Heirs of Samuel Hodge on the basis of title deeds recorded in 1897 by virtue of an Adjudication Record signed by John R. Vincent the Recording Officer. It was recorded in Registration Section: West Central, Block 28111 B Parcel 1.

10 The learned trial judge found that the Adjudication for the West Central Section became final on 6th May 1975.

11 This finding was challenged on appeal. The certificate of finalisation which the Adjudication Officer was required to issue, in accordance with the Land Adjudication Ordinance, 1974 Section 23, was not exhibited. The date of finalisation was inferred from the date of the publication of the certificate of finalisation of the Road Section which succeeded that of the West Central Section. This conclusion was supported by other evidence, which indicated that the case was conducted on the basis that at the material time the adjudication process for the entire island had been completed. I would refer only to an extract of the evidence given by the first-named appellant during his cross-examination:

“I assume that the adjudication record for Parcel 1 was closed when I made a claim for Parcel 9. The Adjudication Officer told me when I applied to have my land registered that the whole process island wide was closed. I understood that I could no longer come with a claim at the time.”

12 This evidence was extremely significant, especially as the first-named appellant was the Chief Minister of Anguilla at the time he held that conversation with the Adjudication Officer.

13 I would not disturb that finding by the learned trial judge.

14 On 12 ^th August 1975 the Adjudication Record for Parcel 1 was altered by the said John R. Vincent, the Recording Officer. The Adjudication Officer took no part in the process of the alteration. A line was drawn through the entry for 27 acres, and beside it was written “ND”, [which was explained to mean that the acreage was undetermined] and a notation was inserted on the record in the following terms:

“No subdivision adjacent to the undemarcated eastern and western boundaries as shown until fixed to the satisfaction of the Registrar of Lands. JRV 12.8.75.”

15 The official demarcation map for the land was also altered by a broken line, representing an undemarcated boundary for a new Parcel 9 estimated to contain about 3 1/4 acres, out of what had been Parcel 1.

16 On the same 12 ^th August 1975 a parcel of land of undetermined acreage was adjudicated with provisional title to the first appellant by virtue of an Adjudication Record, signed by John R. Vincent, Recording Officer. It stated that the date on which possession by the provisional owner commenced was 1st January 1975. It was recorded as West Central Block 2811 1 B Parcel 9.

17 The learned trial judge concluded that the record for Parcel 1 and indeed for the entire West Central Section having been final since the 6th May 1975, the Recording Officer acted in contravention of the Land Adjudication Ordinance, when he altered that record and created the adjudication record for Parcel 9, and that the Court should rectify the illegality.

18 It is against this finding that the appeal is concentrated.

The Appeal

19 In his written submission learned counsel. for the appellants submitted that the real issues are:

• [a] whether the High Court could lawfully adjudicate on the acts of the Recording Officer in the judicial process under the Land Adjudication Ordinance where such a power was statutorily reserved to the High Court by way of appeal within the specified time;

• [b] whether the High Court could lawfully interfere with the first registration of Parcel 9 in the name of the first-named appellant or the second registration thereof in the names of the appellants in the absence of an appeal to the High Court as aforesaid or on proof of mistake or fraud.

20 The legislative environment, as he explained, could be summarised. In 1974 the Land Adjudication Ordinance was enacted in Anguilla “to provide for the adjudication of rights and interests in land and for purposes connected therewith”, with provision for appeal to the High Court. At the same time the Registered Land Ordinance was enacted “to make provision for the registration of land and for dealings in land so registered and for purposes connected herewith”.All land in Anguilla became subject to these ordinances which together prevailed over all other laws relating to land adjudication and registration. The end product of this judicial adjudication process was the compulsory creation by the Registrar of Lands of a first registration of land with absolute or provisional title on the Land Register under the Registered Land Ordinance by virtue of the final adjudication record emanating from the judicial...