Webster v Webster

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: St. Bernard, J.
• Judgment Date: 29 February 1980
• Neutral Citation: AI 1980 HC 1
• Docket Number: 23 of 1977
• Date: 29 February 1980

High Court

St. Bernard, J.

23 of 1977

Webster

and

Webster

Appearances:

D Byron for plaintiff

F Kelsick for defendants

Real Property - Recovery of Possession.

St. Bernard, J.

1 In this action the plaintiff claims recover of possession of a parcel of land with a building thereon containing approximately one acre situate at Island Harbour. In addition he seeks an injunction, restraining the defendants from entering and/or occupying -the said parcel of land and the-building, mesne profits and damages for trespass. In his defence the first-named defendant denies the claim and states that if the plaintiff claims ownership of the said land by virtue of. a Land Certificate issued to h1n under the provisions of ‘the Registered Land Ordinance 1974 in pursuance of a decision made by an Adjudication Officer under the Land Adjudication Ordinance 1974, the defendant says that the said Ordinances contravene the provisions of section’ 7 of the Anguilla(Constitution) Order 1976 and are therefore null, void and of no effect and any proprietary right ‘title or interest claimed by the plaintiff by virtue of the said Ordinances or either of them is of no effect. He admits possession and denies trespass but says he is in possession as an undivided owner of the said land.

2 The second named defendant ‘entered an appearance but filed no defence’ to the action.

3 The recent history of this parcel” of land in dispute may be summarised in this way. Sometime in 1916 John Hodge Webster the father Of Victoria Webster who was the mother of the defendant and others' including Van Webster' possessed this said parcel of land by partition deed. After the death of John Bodge Webster, Victoria Webster was in possession of the land and' Worked and reaped it until the nineteen forties when Van Webster who was in Curacao returned and took possession and worked and reaped the said parcel of land. Victoria Webster died in 1950 and, Van Webster remained in possession until 1973 when he died. Before he died in 1973 Van Webster sold the said parcel of land to his illegitimate son Franklyn, the plaintiff, but remained in possession. The defendant Alfred Webster paid the funeral expenses of: his' brother Van and entered into possession of the land in-dispute a month later, and is still' in possession.

4 Although Van Webster sold the land to his son he did not execute a conveyance in his favour. After his death his wife was granted Letters of Administration of his estate and conveyed the said parcel of land to the plaintiff. The defendant has refused to deliver up possession on the ground that he is an undivided owner of the said parcel of land.

5 The dispute was taken before the Land Adjudication Officer under the provisions of the Land Adjudication Ordinance 1974, (No. 2), and the Adjudication Officer granted to the plaintiff an absolute title under the said Ordinance. This title was registered in accordance with section 23 of the Registered Land Ordinance 1974 (No. 4). Before the Land Adjudication Officer the defendant claimed the said. parcel of land as representative of the heirs of William Webster, his father. This claim was rejected and there was no appeal.

6 Section 23 and 27 of the Registered Land Ordinance 1974 reads -

• “23. Subject to the provisions of section 27 of this Ordinance the registration of any person as the proprietor with absolute title of a parcel shall vest together with all rights and privileges belonging or appurtenant thereto, free from all other interests and claims whatsoever, but subject

  • (a) to the leases, charges and other incumbrances and to the conditions and restrictions, if any,• shown in the register; and

  • (b) unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared. by section 28 of this Ordinance not to require noting on the register:.

7 Provided that -

• (i) nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee;

• (iii) the registration of any person under this Ordinance shall not confer on him any right to any minerals or to any mineral oils unless the same are expressly referred to in the register.”

  • “27. Every proprietor who has acquired land, a lease or a charge by transfer without valuable consideration shall hold it subject to any unregistered rights or interests subject to whom the transferor held it, and subject. also to the provisions of any law relating to bankruptcy and to the winding-up provisions of the Companies law, but save as aforesaid such transfer when registered shall in all respects have the same effect as a transfer for valuable consideration.”

8 From the above sections it will be observed that registration of the title under the above Ordinance gives an owner absolute ownership of the parcel registered together with all rights and privileges belonging or appurtenant thereto, free from all other interests and claims whatever subject to certain conditions and restrictions which do not apply in this instance. Prima facie, therefore, the registration of the land and the holding of a land certificate in respect of that parcel of land gives the holder thereof a right to possession of the land to the exclusion of all others holding without his consent: If this is so then the plaintiff's right to possession of the parcel of land in dispute under the law is complete and indefeasible to that extent.

9 Counsel for-the defendant submitted that the granting of a land certificate under the Registration Land Ordinance by virtue of the provisions of-the Land adjudication Ordinance is null and void and is of no effect since the provisions under which an absolute title is granted contravenes section 7 of the Anguilla(Constitution) Order, 1967.

10 Section 7 of the Constitution order enacts -

• “7(1). No interest...