BETWEEN: JENNIFER LONGSWORTH PLAINTIFF AND

Transcription

1 IN THE SUPREME COURT OF BELIZE, A.D ACTION NO. 796 OF 2009 BETWEEN: JENNIFER LONGSWORTH PLAINTIFF AND CHARLESTON CLELAND DEFENDANT Mr. Rodwell Williams SC, for the claimant. Mr. Linbert Willis for the defendant. AWICH J J U D G M E N T 1. Notes: Law of Property absolute title under s:26 of Registered Land Act Cap.194, as indefeasible title a claim based on Land Certificate issued under s:13 of the Act. The land was part of a larger land owned by great grandfather of the claimant and defendant; the claimant obtained Land Certificate of the entire land; the defendant counterclaims right to the southern part of the land on the ground that his grandfather and him had title to the southern part, or had been in continous and undisturbed possession of the part, whether there has been mistake under s: 143 of the Act, and if so, whether the register may be rectified despite absolute title/ indefeasible title whether the defendant was in occupation and had overriding interest under s: 31 of the Act. Rectification of Register. 1

2 2. This claim was originally assigned to a different judge who made case management orders on 17 th December It was then transferred to another judge who also made certain orders on 5 th May Then the case was reassigned to me. There have been differences between counsel as to whether certain orders were made by one of the judges before the matter came to my court, and whether certain orders were complied with. Then a strong formal objection to calling an expert witness, given the case management conference orders, was raised and long submissions were made. I had to render a written ruling. These are some of the difficulties that arise when cases get transferred from one judge to another. 3. The claim is a sorry story of two great great grandchildren contesting the right of the other to a portion of land left and passed down by their great great grandfather, Hendicott Cleland. The land the subject of the claim and counterclaim, is described as, the eastern portion of Lot 1280 A, situate on Wilson Street, Belize City. In Land Certificate No. LRS , exhibit C(JL) 1.2, issued on 21 st April 2009, it is described as, Parcel 326, Block 45, Fort George/Pickstock Registration Section. 2

3 4. The claimant, Jennifer Longsworth, claims that the entire eastern portion of Lot 1280 A, now Parcel 326, Block 45, belongs to her, and that the defendant, Charleston Cleland, wrongfully occupies the southern part without her permission and refuses to vacate the land. Ms. Longsworth claims a right to the land by authority of the Land Certificate No. LRS She claims the reliefs of : (1) possession of the land; (2) an order that the defendant remove his wooden house and vacate the land; (3) an order restraining the defendant from entering the land; and (4) damages for trespass. The defendant resists the claim only to the extent that the southern part of that eastern portion of Lot 1280 A, does not belong to the claimant, it belongs to him. 5. The Evidence Despite the several objections to items of evidence and to witness statements, sufficient good testimonies and evidence remained on which this court can decide this claim and counterclaim. 6. The testimony of the claimant who was her only witness was as follows. She is the daughter of Grace Longsworth. Her father Louis Longsworth, her mother Grace Longsworth, and their five children including the claimant, lived at No. 24 Wilson Street, 3

4 Belize City. According to her, No. 24 Wilson Street is the entire eastern portion of Lot 1280 A from North to South, ending at Mr. Hemsley s lot to the south. Her mother then went and lived at 16 Nargusta Street, Belize City, in In 1981 or 1982, the mother went and lived in Florida USA, she continues to live there. The claimant had gone in 1980, and lived in the USA, she lives at East Berry Place, Englewood, Colorado USA. I note that the claimant left for the USA before the defendant was born. 7. According to the claimant, in the ninties she obtained from her mother a verbal gift of the, entire land all the way to the land of Hemsley, then on 21 st February 2003, the mother executed a deed of gift of the property. Based on the deed, she obtained the Land Certificate. The survey plan, exhibit No. D(CC) 2.6 which was filed at the Land Registry for identification of the land, was prepared by a surveyor, Mr. G.V. Bautista, at the request of the claimant. She admitted that Eric Cleland lived at No. 30 Wilson Street. She was asked whether Bertie Cleland (her grandfather) lived at 24 Wilson Street. Her answer was no. She was asked who lived at 24 Wilson Street. Her answer was that Grace Longsworth her mother, Louis Longsworth her father, and the five children 4

5 including herself, lived at 24 Wilson Street. She said that her mother owned 24 Wilson Street. 8. The explanation by the claimant as to how the defendant came to live in a wooden house on the eastern portion of Lot 1280 A was that, on 11 th July, 2003, the claimant had an agreement with her cousin Audry Cleland, the mother of the defendant, that Audry would live in house No. 24 on the eastern portion until Audry built her own house. The claimant said that the house belonged to her. She explained further that, Audry lived in the house with the defendant until she built her house and left, about 15 th July 2005, but the defendant remained and refuses to leave, and continues to live on the land in a wooden house he built. 9. The claimant did not call her mother Grace Longsworth, or the surveyor Mr. Bautista as witnesses. Mr. Bautista is deceased. However, the claimant produced the Land Certificate No. LRS and the survey plan as exhibits, with the consent of counsel for the defendant. In crossexamining the claimant, counsel for the defendant got the claimant to produce the deed of gift, exhibit D(CC)2.4, made on 21 st claimant and Grace Longsworth. February 2003, between the The claimant admitted that she 5

6 relied on the deed of gift for her title that she secured registration of and obtained the Land Certificate for. 10. I note that in the deed of gift Grace Longsworth claimed title on the ground that, she had, adverse possession having been in long undisturbed occupation therefore for upwards of thirty years and by diverse other means. 11. The defendant resists the claim on the ground that, he was born on 18 th November 1981, on the southern part of the entire eastern portion of Lot 1280 A, which part numbered 30, was owned and occupied by his grandfather Eric Cleland at the time. The defendant testified that, the Lot as a whole had been owned by great great grandfather Hendicott Cleland who passed the southern part to great grandfather Melvan Cleland who passed it to grandfather Eric Cleland who then passed it to the defendant. He testified further that, he lived all his life on the southern part, No. 30, with his grandfather and grandmother until they died; his mother Audry Cleland lived elsewhere, but in 2003 to 2004 she lived in house No. 24 on the north eastern part of Lot 1280 A. He did not know about an agreement between his mother and the 6

7 claimant, under which his mother lived in house No. 24; he never lived in house No The defendant also said in his testimony that the north western part of the eastern portion of Lot 1280 A which was numbered 26, was occupied by his grand uncle Mel Cleland, and the northeastern part numbered 24 was occupied by grand uncle Bertie Clealand. He said that he did not know Grace Longsworth and the claimant, and that they did not live with Bertie, he never saw them live at Lot 1280A, in particular, they never lived at No. 30, the rear portion of the eastern portion of Lot 1280 A. According to the defendant, the claimant had connection to the north eastern portion of Lot 1280A, and may be entitled to No. 24, but not to No Regarding the survey plan drawn by Mr. Bautista, the defendant said that it was when the claimant s attorney tried to evict him from No. 30, that he hired a surveyor who then obtained a copy of the deed of gift and the survey plan. The surveyor could not testify as the result of failure to comply with Rules of Court The defendant s mother Audry Cleland, witness No. 2 for the defendant, confirmed that the eastern portion of Lot 1280 A was 7

8 portioned into No. 24, No. 26 and No. 30, and that her father Eric and her mother and Audry s son, the defendant, lived at No. 30 until the grandparents died and left the defendant on the land. The witness testified further that, her uncle Bertie Cleland was the father of Grace Longsworth, the mother of the claimant. She also said that the claimant may be entitled to No. 24 left by Bertie Cleland, but not entitled to No. 30. She accepted that some time past, the claimant gave her permission to live in house No. 24 which the claimant said her mother Grace, had transferred to the claimant; the defendant did not live with her in house No. 24, although he helped keep the yard clean; he lived at No. 30. She said that the claimant never ever claimed ownership of No. 30, and that neither Grace nor the claimant ever occupied No. 30. She confirmed that the defendant lived at No. 30 from birth, with the grandparents until they died. 15. Ivy Barrow Flowers, another witness for the defendant, was born on 11 th June She lived at No. 20 Wilson Street. She testified that she knew the brothers, Bertie Cleland, Mel Cleland and Eric Cleland; they are deceased. Their land was a large one divided into two parts No. 24 and No. 26, in the front, and one part No. 30 in the rear. The witness knew the defendant who she said is the 8

9 grandson of Eric and Emma Cleland, he lived all his life with the grandparents at No. 30 until they died. The witness also knew Grace Longsworth and her daughter Jennifer Longsworth. They lived for a short time with Bertie Cleland at No. 24. Grace is his daughter and Jennifer is his granddaughter. Jennifer often visited the witness when she visited Belize from the USA. 16. The defendant has, in addition to defending the claim, made counterclaim based on wrongful obtaining title and Land Certificate for the portion numbered 30 of the eastern portion of Lot 1280 A which is now Parcel 326, of Block 45, Fort George/Pickstock Registration Section, Belize City. His ground for the counterclaim was that the claimant knew that, Eric Cleland the defendant s grandfather, owned portion No. 30 and that, the defendant had been in continous and undisturbed possession of the portion and claimed a right to the land through his grandfather, Eric. He counterclaims the following reliefs: (1) a court declaration that Land Certificate No. LRS , is null and void; (2) a court declaration that the defendant is the owner of the southern portion of Lot 1280A, situate on Wilson Street, measuring 443 square yards, bounded on the north by the north western portion formerly owned by Melvin Cleland, and the north eastern 9

10 portion formerly owned by Bertie Cleland; (3) an order that the defendant s name be entered on Land Register as the proprietor of title to portion No. 30; (4) an order that a right of way from Wilson Street be granted to him; (5) an order that the survey plan exhibit D(CC) 2.6 drawn and filed by G.V. Bautista be amended; and (6) an injunction order restraining the claimant from interfering with portion No Determination The land, the subject of the claim and counterclaim, is in an area which has been declared by the Minister responsible to be a compulsory registration area under s: 4 of the Registered Land Act, Cap 194. As the result, and subject to s: 38 of National Lands Act, Cap. 191, the laws applicable to such land are the laws in this Act see ss: 3, 11 and 159 of the Act. 18. All lands in a compulsory registration area must be registered, and any dealing in such lands must also be registered see ss: 10 to 15 and 34 of the Act. When a title to land is being considered for registration under the Act, the claim of title to the land must be verified before it is registered and Land Certificate issued showing the description of the land and ownership of title. When the 10

11 Registered Land Act was passed in 1977, it was intended to effect universal registration of all lands and titles. That is yet to be accomplished. 19. This claim raises the question of indefeasibility of absolute title, provided for in s: 26 of the Registered Land Act. Absolute title is created by registration of title, in this case under ss: 12 to 15 of the Act. The defence and counterclaim raise the corollary question as to whether there has been a mistake which could have affected the registration of title in favour of the claimant, and if so, the question of rectification of the Land Register under s:143. The question of any overriding interests protected under s: 31 of the Act, and which affect a registered title also arises. Fraud was not pleaded. 20. The three crucial sections, 26, 31 and 143, to the extent relevant to this case are as follows: 26. Subject to section 30, the registration of any person as the proprietor with absolute title of a parcel shall vest in that person the absolute ownership of that parcel together with all rights and privileges belonging 11

12 or appurtenant thereto, free from all other interests and claims whatever, but subject (a) to the leases, charges and other encumbrances 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 31 not to require noting on the register: Provided that 31. (1) Subject to subsection (2), unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect it, without their being noted on the register (f) rights acquired or in the process of being acquired by virtue of any law relating to limitation or prescription; 12

13 (g) the rights of a person in actual occupation of land or in receipt of the rents and profits thereof except where inquiry is made of such person and the rights are not disclosed; 143. (1) Subject to subsection (2), the court may order rectification of the register by directing that any registration be made, cancelled or amended where it is satisfied that any registration, including a first registration, has been obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified so as to affect the title of a proprietor who is in possession or is in receipt of the rents or profits and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default. 21. It is common ground that, the registration of the entire eastern portion of Lot 1280 A and title to it procured by the claimant was a 13

14 first registration under ss: 13 and 15 of the Act. According to the Land Certificate, the entire land which was the eastern portion of Lot 1280 A, became on registration, Parcel 326, Block 45, in Fort George/Pickstock Registration Section, a compulsory registration area. It is also common ground that title to the entire land was recorded in favour of the claimant, Jennifer F. Longsworth, and Land Certificate No. LRS ,exhibit C(JL) 1.2, issued in her name. 22. The registration process by which the claimant became the owner of the registered title to the land, in common expression, the owner of the land, would have been this. Section 13 requires an applicant for first registration of his title to land in a compulsory registration area to submit an application to the Registrar of Lands. The Registrar is required to verify the basis on which the applicant claims title or interest, before the Registrar records the applicant, as the owner of the parcel and declares his title to be absolute. For the sake of details, I set out the relevant parts of s: 13 here: 13. (1) Where a person having an interest in land which is not registered under the General Registry Act and which is situated in a compulsory registration area wishes to deal in 14

15 such interest, he shall prior to such dealing, submit to the Registrar an application for first registration in the prescribed form and shall attach to such application all documents in his possession relating to that interest. (2) On receipt of an application for the first registration, the Registrar shall (a) publish in the Gazette and in at least one newspaper, a notice of his intention to registrar the land for the purpose of bringing it to the attention of persons who may be affected thereby; (b) (c) examine the title and for that purpose may examine any deed recorded under the General Registry Act or summon any person to give evidence, if he considers such evidence likely to be relevant to the application. 15

16 (3) If, as a result of such examination, the Registrar is satisfied that a person (a) is in peaceful, open and uninterrupted possession of a parcel in accordance with the principles contained in section 139 and has been in such possession by himself or by his predecessors in title for an uninterrupted period of twelve years or more; or (b) has a good documentary title to the land and that no other person has acquired a title thereto under any law relating to prescription or limitation, and that he would succeed in maintaining or defending such possession or title against any other person claiming the land or part thereof, the Registrar shall record that person as the owner of the parcel and declare his title to be absolute. 16

17 (4) If the Registrar is satisfied that a person is in possession of, or has a right to, a parcel but is not satisfied that such person is entitled to be recorded as the owner of the parcel with absolute title, he may nevertheless record that person as the owner of the parcel and declare his title to be provisional and in such case shall record (a) (b) particulars of any deed, instrument or other document by virtue of which some estate, right or interest adverse to or in derogation of the title of that person may exist; or (c) any other qualification which affects the title. (5) (6) The Registrar shall by notice inform the owner and any other persons having an interest in the parcel of the particulars contained in any record made under subsections (3) to (5) and shall require them to state objections, if any, in writing within such period as is stated in the notice. (7) After expiry of the period stated in the notice 17

18 given under subsection (6), if no objection is received or, if any objections have been received, after giving any person objecting an oppurtunity of being heard, the Registrar shall confirm or amend the record and record the date of such confirmation or amendment and shall forthwith open a register for the parcel and for any lease required to be registered under this Act and shall file the record. (8) Any person who is aggrieved by any decision made by the Registrar under this section may appeal to the court within thirty days from the date of confirmation or amendment of the record or within such extended time as the court may, on good cause being shown, allow. (9) Nothing in this section shall be held to preclude any person having an interest in land within a compulsory registration area from applying for first registration notwithstanding the fact that he does not intend to deal in such interest. 23. Subsections 6 and 7 provide for the Registrar inviting persons who have objection to an application for registration, to a hearing by the Registrar, and for the Registrar to decide whether he upholds the 18

19 objection or rejects it. Subsection (8) provides for an appeal to the Supreme Court by a person who is aggrieved, that is, who is dissatisfied with the decision of the Registrar. 24. The evidence and the law. In this case there has been no evidence as to whether the Registrar, on receipt of the application for title by the claimant published in the Gazette and newspaper, notice of his intention to register the land and title and issue Land Certificate to the claimant. The evidence tended to prove otherwise. The defendant knew of the claim of the claimant only from the claimant s attorney when he demanded that the defendant vacate the land. However, the defendant did not plead that the Registrar did not comply with the provisions of s:13 regarding verification and registration of title. I shall proceed on the basis that the registration of the eastern portion of Lot 1280A which became Parcel 326, Block 45, Fort George/Pickstock Registration Section, was carried out in accordance with the provisions of ss:13 and 15, and the Registrar made a declaration of absolute title in accordance with s: An absolute title, sometimes referred to as title absolute, is ownership of legal estate (legal title) in registered land, with a 19

20 guarantee by the State that no one has better right to that estate (title). It is a consequence of compulsory registration under the Registered Land Act, particularly under s: 13, and was also a consequence under the General Registry Act, Cap Section 26 of the Registered Land Act confirms the law regarding absolute title by providing that: registration of a person as the proprietor of a parcel of land with absolute title vests in that person the absolute ownership of the parcel together with all rights and privileges belonging or appurtenant thereto, free from all other interests and claims whatever 26. The system of registration of land and title is commonly known as the Torrens System; the name was derived from the original practice introduced into the legal system of South Australia by Sir Robert Torrens in Absolute title is said to be indefeasible title, which means title that is incapable of being made void. It is this indefeasibility of absolute title registered under the Registered Land Act, Cap. 194, Laws of Belize, that Lord Phillips of Worth Matravers, delivering the judgment of the Privy Council in an appeal case from Belize, William Quinto and Jimmy Quinto v Santiago Castillo Limited 20

21 [2009] UKPC 15, described as, a merit of the System. The passage at paragraph 4 under the heading, The Torrens System in Belize, is the following: Under the Torrens system registration confers title on the registered proprietor. A merit of the system is that a purchaser from the registered proprietor does not normally need to look further than the register for assurance that the vendor has good title. 28. Lord Phillips, however, pointed out that, indefeasibility of title is capable of giving rise to injustice if the registration of the title is brought about by fraud or by a mistake. He explained that, it was for this reason that many Torrens Systems made provision for rectification of the register. Rectification relevant to this case is provided for in s: 143 of the Registered Land Act. A much earlier Privy Council case authority regarding indefeasibility of title registered under statute is, Gibbs v Messer [1891] A.C Unfortunately the concept of indefeasible title has at times in the past, led to a few wrong court judgments in Belize, despite the explanation given by the Privy Council, of what indefeasible title 21

22 means and the qualifications thereto, in the appeal case from Belize, the British American Cattle Company v Caribe Farm Industries Ltd and the Belize Bank Ltd. (1998) 3 BZ LR 468. I have to mention, however, that the case was decided on the reason that the provisions of a later legislation, the Alien Land Holding Act, were intended to override indefeasibility of title provided for under the earlier, General Registry Act, and the Law of Property Act. 30. Indefeasibility of absolute title obtained by registration under the Registered Land Act, is qualified by s:143 of the Act, so that the title can be defeated or modified where there has been fraud or mistake, except where the registered owner of title is in possession of the land and is a purchaser for valuable consideration who acquired his title bona fide, that is, without participating in or having knowledge of the fraud or mistake. Absolute title obtained under the earlier legislation, the General Registry Act can, where the Act is still applicable, similary be defeated or modified where there has been fraud, error, or misdescription of the land or boundary see s:63 of the General Registry Act, and s: 41 (4) of the Law of Property Act, Cap

23 31. Since the Quinto v Castillo Ltd. case in 2009, the over inflated view in Belize of indefeasibility of absolute title has been, or should be appropriately deflated. It should no longer be doubted that, mistake or fraud defeats the indefeasibility of absolute title obtained by compulsory registration under the Registered Land Act, or the General Registry Act which together comprise` the Torrens System in Belize. The mistake or fraud must come from or be known by the person who obtained the title or his agent, or the mistake may originate from the Registrar of Lands, but must have been acted upon. 32. In the Quinto v Castillo Ltd. case, the vendor, Ms. W. registered title in her favour, of a valuable commercial land by presenting a false document, an indenture that she inherited, for a different land. She sold the valuable commercial land and transferred title to Castillo Ltd., the respondent, under the Registered Land Act. The land in fact belonged to the Quintos, the appellants, who had registered their title under the earlier legislation, the General Registry Act, 1954, but not yet under the later legislation, the Registered Land Act, which required re registration of all lands in a compulsory registration area. Castillo Ltd. had believed in the past that the land was owned by the Quintos; Castillo Ltd. had 23

24 several years earlier unsuccessfully offered to buy it and then to rent it from the Quintos. While the application for registration of transfer of title from Ms. W. to Castillo Ltd. was under consideration, the Quintos filed at the Land Registry their application for compulsory registration under the Registered Land Act. Two days after that, transfer of title from Ms. W. to Castillo Ltd. was registered by the Registrar. She did not check all the records and was unaware of the application by the Quintos. On behalf of Castillo Ltd., it was submitted that, upon the registration of transfer to Castllio Ltd. and the issue of the Land Certificate, the title of Castillo Ltd. became absolute and indefeasible, and that Castillo Ltd. did not know of the fraud or mistake. The Privy Council allowed the appeal of the Quintos for the reason that the indefeasible title of Castillo Ltd. had been obtained by fraud and mistake. The fraud was by Ms. W., and Castillo Ltd. knew of it. The mistake was by the Registrar of Lands. The Privy Council upheld the order of the trial judge for rectification of the register under s: 143 of the Registered Land Act, by substituting the appellants as the proprietors of title to the land. 33. It is appropriate to recall s: 143 in full here: again: 24

25 143. (1) Subject to subsection (2), the court may order rectification of the register by directing that any registration be made, cancelled or amended where it is satisfied that any registration, including a first registration, has been obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified so as to affect the title of a proprietor who is in possession or is in receipt of the rents or profits and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default. 34. Mistakes proved. There are two important difficulties in the case for the claimant. The first is whether when the claimant presented her application based on the deed of gift, it was true that she by herself, or through her mother, had been, in adverse possession, having been in long undisturbed occupation for upwards of thirty years, of the entire eastern portion of Lot 1280 A from Wilson Street to the land of Mr. Hemsley to the south. 25

26 35. The evidence of the claimant s own possession of No. 24 on the north eastern portion of the eastern portion of Lot 1280 A from 21 st February 2003, when the deed of gift was made was not contested, eventhough she did not demonstrate her possession by physical presence or receipt of rent. Also her possession of No. 24 prior to 21 st February 2003, through the possession of her mother, was not contested. 36. But, her evidence that she and her mother occupied the eastern portion of Lot 1280A including the southern part, bordering Mr. Hemsley s land was strongly contested, and in my view, successfully. The claimant herself admitted that Eric Cleland lived in house No. 30 on the southern part. In addition the testimony of an independent witness, Ivy Barrow Flowers, born in 1923, left no doubt that the defendant s grandfather and grandmother occupied the southern part, and that the defendant was born and lived there since. 37. It is my conclusion that it was a mistake of fact and law for the mother of the claimant to state in the deed of gift that was attached to the claimant s application for registration of title that, the mother was, seized of the property by adverse possession, meaning 26

27 that she had adverse possession of the entire eastern portion of Lot 1280 A. The mistake of fact was the false presentation that she had possession of the entire land, the eastern portion of Lot 1280A, when in fact she had never occupied and had never claimed right to possession of the southern part of the Lot, and she had known that her uncle Eric occupied and claimed the right to possession of the southern part of the Lot. She also would have known that the defendant, a grandson of uncle Eric would claim possession. She lived in the USA since 1981 or The defendant was born in If Grace Longsworth did not known that the defendant lived on the southern part of the eastern portion of Lot 1280A, then that was another mistake of fact. 38. The mistake of law was the representation that the claimant and her mother had, adverse possession. Adverse possession is a concept of law; it means the occupation of land to which another person has title, or claims a right to, and with the intention of possessing the land as the possessor s own the animus possidendi. The adverse possessor must occupy the land as if he were entitled to it to the exclusion of all others see Lord Advocate v Lord Lovat (1880) 5 App. Cas 273, and JA Pye (Oxford) Ltd. v Graham [2003] 1 AC 419. The claimant and her mother never occupied or claimed a 27

28 right, let alone openly and to the exclusion of others, to the southern part of the Lot. 39. The first time the occupation by the defendant of the southern part of the eastern portion of Lot 1280A, was challenged was in a letter dated 6 th November 2007, written by attorneys for the claimant. Registration of title in favour of the claimant took place after that on 21 st April There has been no evidence as to whether the Registrar was made aware that the defendant was in occupation of part of the land intended to be registered, and had refused to vacate. 40. It has been proved that it was not true that, the claimant by herself or through her mother, occupied the entire eastern portion of Lot 1280 A, or to the exclusion of all others, including the defendant. That falsehood and the mistake were communicated to the surveyor Mr. Bautista, who simply drew a map of the entire eastern portion of Lot 1280 A as one lot occupied by one person, the claimant who hired him. The surveyor is deceased. His plan remained based on assumption that only the claimant occupied the entire eastern portion of Lot 1280 A, including the southern part. The assumption has been disproved by evidence. 28

29 41. The mistakes of fact and of law endured and were acted upon by the Registrar of Lands when she registered the entire eastern portion of Lot 1280A, including the southern part that the defendant occupied, as Parcel 326, Block 45, Fort George/ Pickstock Registration Section, in favour of the claimant. In my view, the registration of title in favour of Jennifer F. Longsworth by the Registrar was the result of mistakes of fact and law. Accordingly it is defeated under s:143 of the Registered Land Act, by the mistakes. The title and Land Certificate No. LRS must be regarded as defeated. 42. The second important difficulty in the claimant s case is related to the first. By law in s: 31 of the Act, when the claimant obtained registered title, her title was subject to the overriding interests in s: 31(1)(f), namely, a right [of another] acquired or in the process of being acquired by virtue of the law regarding prescription, and subject to s:31(1)(g) namely, the right of a person in actual occupation of the land. 43. When the claimant registered title on 21 st April 2009, the defendant was in actual occupation of the southern part of the land. He was protected by the above subsections. The defendant s right would 29

30 not be defeated simply by the registration of the title and issuing of Land Certificate in favour of the claimant. The right that the defendant relied on for occupying the land had to be inquired into before title of the claimant was registered. If it was found that the right claimed by the defendant was not capable of co existing with the title of the claimant intended to be registered, then the claim of right by the defendant had to be resolved before the title of the claimant could be registered. If the right claimed by the defendant was capable of co existing with the title of the claimant, then her title would be registered subject to the right claimed by the defendant; the Registrar would then note the right of the defendant on the register under s:13(5), or the title of the claimant would be registered as a provisional one under s: The evidence showed that, the right that the defendant claimed was ownership of the southern part of the eastern portion of Lot 1280 A. The Lot has been registered in entirety with title in favour of the claimant. The defendant s claim was a rival claim to title to the southern part; it was incapable of co existing with the title of the claimant to the entire lot. The rival claim needed to be resolved amicably or decided by court before the claimant applied for 30

31 registration of title in her favour, or needed to be decided upon by the Registrar as part of the process of registration. 45. Orders made. The claim of Jennifer Longsworth fails and is dismissed. The counterclaim of Charleston Cleland succeeds and is upheld. But the court cannot make an order granting to Charleston Cleland title to the southern part of the land, the eastern portion of Lot 1280A, now Parcel 326, Block 45, Fort George/Pickstock Registration area, and right of access straight away. He will have to apply to the Registrar of Lands for title under the Act. The Registrar will process his application according to the provisions of the Registered Land Act. 46. The order that I make to meet the success of Charleston Cleland is that the Registrar of Lands is directed to rectify the register by cancelling the title of Jennifer Longsworth to Parcel 326, Block 45, Fort George/Pickstock Registration Section which was the entire eastern portion of Lot 1280A, Wilson Street, Belize City. It is open however, for the claimant, and the defendant on the other hand, to apply to the Registrar of Lands for registration of title to 31

32 the portion of the eastern portion of Lot 1280A that each claims a right to. 47. I did consider rectification that would not involve cancelling the Land Certificate of the claimant, and would accommodate the success of the counterclaim by the defendant. None came to mind readily, given that the plan filed by Mr. Bautista did not show demarcation between the north eastern part and the southern part of Lot 1280A. The solution to the matter is, in my view, to require each party to apply to the Registrar of Lands for registration of his or her title or right, and to attach a survey plan showing the exact area of the land he or she claims title or right to. 48. Costs of the claim and counterclaim shall be paid by the claimant to the defendant. 49. Delivered this Thursday the 20 th day of October 2011 At the Supreme Court Belize City Sam Lungole Awich Judge Supreme Court 32