Barrow v Benjamin

• Jurisdiction: Caribbean States
• Judge: Rennie, J.,Hallinan, C.J.,Marnan, J.
• Judgment Date: 05 September 1960
• Court: Federal Supreme Court (West Indies)
• Date: 05 September 1960

Federal Supreme Court

Hallinan, C.J.;

Rennie, J.;

Marnan, J.

Barrow

and

Benjamin

Dr. F. H. W. Ramsahoye and C. A. F. Hughes for the appellant.

L. F. S. Burnham, Q.C., for the respondent.

Real property - Partition — Immovable property-Whether prescriptive title disturbed by award of partition officer-Deeds Registry Ordinance, Cap. 32, s. 23.

Rennie, J.

1 This appeal is in respect of a claim for possession of a lot of land.

2 The appellant alleged in his statement of claim that on January 4, 1958, he became the transported owner of the lot of land under the provisions of s. 15 of the District Lands Partition and Re-allotment Ordinance, Cap. 173 (hereinafter referred to as the Partition Ordinance), and that the respondent is in occupation of a portion of the lot and built a house thereon. The respondent's defence is that he has been in undisturbed possession of the lot of land for 40 years. The appellant in his reply joined issue with the respondent on his defence. And on the trial of the action the learned judge found “on the evidence as a whole the court is satisfied that from 1915 the defendant has been in complete possession and control of the land in question nec clam nec vi nec precario.”

3 In spite of that finding of fact by the trial judge the appellant contends that the judgment should not have gone against him having regard to the fact that the respondent did not appeal against the award of the officer appointed under the Partition Ordinance and must therefore be bound by the award which is final and that the provisions of s. 23 of the Deeds Registry Ordinance, Cap. 32, vested the full and absolute title to the lot of land in him as transferee. He relies heavily on the case of Steward v. Haynes, 1953 L.R.B.G. 46, in support of his contention. In that case Steward was in open and continuous possession of a parcel of land from 1903. About 1928 or 1929 the portion occupied by her was included in an area of land partitioned in accordance with the Partition Ordinance. Her portion was allotted to a claimant. She did not claim. The list of awards was published by the partition officer and transport passed to the successful claimant. There was no appeal against the partition officer's award because Steward did not know of it although she subsequently learnt in 1940 that another person was awarded her land. She took no action but continued in possession. On those facts the court came to the conclusion that she could not successfully oppose a transport to transfer the land on the ground that opposition founded on possession prior to the partition was invalid as where there is no appeal from the award of a partition officer the award is final. As she did not know of the award at the time it was her duty to institute appropriate proceedings after she learnt of it. The facts in that case seem almost on all fours with those of the present one but it is necessary to examine the judgment to see if the points raised in the present case were considered and decided. Before I turn to the judgment I must however set out the relevant provisions of the Ordinance and give some recognition of the points raised by the respondent. In s. 2 of the Partition Ordinance “owner” is defined to mean

“any person who by transport, letters of decree, inheritance, or devise, has acquired title to any share in any land not partitioned, or to any holding in any partitioned land, and includes any person who has purchased the share or holding but has not received transport or other title therefor.”

4 Sections 3 (1) and 16 (1) provide as follows:

• “3. (1) The owners of undivided shares in any land in a district who desire that it shall be partitioned or the owners of the several holdings in any partitioned land in a district who desire that that land shall be re-allotted among them in some manner different from that in which it is occupied to ensure the more beneficial occupation thereof, or in order to have correct titles issued therefor where it is not being occupied in accordance with the division shown on the plan to which the existing titles relate, may present a petition to the Governor in Council praying that under the provisions of this Ordinance the area specified in the petition be partitioned or re-allotted as the case may be among the owners thereof.”

• “16. (1) Any claimant to, or any mortgagee of, any share or holding who is dissatisfied with a decision of the officer may within one month after the publication under subsection 4 of section 15: of the list in the Gazette, appeal from the said decision to a judge in chambers by filing in the Registry of the Supreme Court in the prescribed form a notice of appeal in which the grounds of appeal shall be briefly set out.”

5 Prom the provisions of s. 3 (1) it seems clear that only an owner as defined in s. 2 can set the machinery of the Ordinance in motion. The question then is whether a person who has prescribed title to an area of land is an owner within the meaning of the Partition Ordinance. I think not. He has not acquired the land by transport, letter of decree, inheritance or devise nor has he purchased it.

6 The next step is to see whether he is a claimant or mortgagee and so enabled to appeal against the award of the partition officer. He is certainly not a mortgagee. The one point therefore in so far as the Partition Ordinance is concerned is whether he is a claimant. The respondent's contention, which the trial judge accepted, was that he had prescribed title to the whole...