Francis Chitolie and another v Saint Lucia National Housing Corporation
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sales,Lord Burrows,Lord Richards |
| Judgment Date | 05 December 2023 |
| Neutral Citation | [2023] UKPC 43 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0064 of 2022 |
[2023] UKPC 43
Lord Briggs
Lord Sales
Lord Burrows
Lord Stephens
Lord Richards
Privy Council Appeal No 0064 of 2022
Privy Council
Michaelmas Term
From the Court of Appeal of the Eastern Caribbean Supreme Court (Saint Lucia)
Appellant
Myriam Stacey KC
Richard Moules
(Instructed by Sheridans (London))
Respondent
V Dexter Theodore KC
Edith Petra Jeffrey-Nelson
Esther Green-Ernest
(Instructed by BDB Pitmans LLP (London))
Heard on 3 July 2023
Lord Sales, Lord Burrows AND
Under the rules of prescription laid down in the Saint Lucia Civil Code, title to land may be acquired by uninterrupted possession for 30 years. The central issue in this appeal is the effect of the Saint Lucia Torrens system of land registration on rights to land that were in the course of being acquired by prescription at the time the Torrens system was introduced.
It is important to make clear that, while all Torrens systems share the goal of achieving, so far as possible, certainty (by indefeasibility) of title by registration, they can and do differ in their precise details. It is therefore essential in this case to focus on the particular provisions applying to the Saint Lucia Torrens system and not to assume that decisions in other jurisdictions with a Torrens system can simply be applied across to Saint Lucia. This point was forcefully made by Sir Terence Etherton, giving the judgment of the Board, in Arthur v Attorney General of the Turks and Caicos Islands [2012] UKPC 30. He said at paras 13–15:
“Registration of title was introduced into Australia by Sir Robert Torrens in 1858. The system, which came to be known as the Torrens system and was first embodied in the South Australian Real Property Act 1858, spread to the other colonies in Australia and New Zealand and later to many other countries in the Commonwealth and elsewhere. The objective of the system was to achieve complete certainty of title. [But that objective] has never been achieved…
The fact that the Torrens system has been implemented in different countries with varying degrees of flexibility was emphasised by the Board in Santiago Castillo Ltd v Quinto [2009] UKPC 15, (2009) 74 WIR 217, when considering the provisions in the Belize Registered Land Act 1974 for rectification of the register…
It is necessary, therefore, when considering the effect of legislation implementing the Torrens system in any particular jurisdiction, to focus on the provisions of the particular legislation in question, and to take special care when considering the relevance and usefulness of judgments in cases in other jurisdictions where the legislation, policy considerations and general principles of law may be different.”
The Torrens system was implemented in Saint Lucia by two linked statutes in 1984: the Land Adjudication Act (which we will sometimes refer to as the “LAA”) and the Land Registration Act (which we will sometimes refer to as the “ LRA”). The project underpinning first registration in the new system was known as the Land Registration and Titling Project (the “LRTP”) and, in so far as relevant to the facts of this case, it is not in dispute that that project was being undertaken in mid-1987.
The disputed land is referred to as Block 1020B Parcel 227 (which subsequently became Block 1020B Parcels 441, 444, 446, 447) and comprises 229.05 acres. Under the new Torrens system, title to the disputed land was first registered by the Land Registry in the name of the National Development Corporation on 23 June 1987. The National Development Corporation was the sole claimant to the disputed land during the LRTP. Mr Francis Chitolie and Mr Vance Chitolie, who are the appellants, made no claim to the disputed land during the LRTP although Francis did make a claim to another unconnected parcel of land. In July 2008 title to the disputed land was transferred to the Saint Lucia National Housing Corporation (“NHC”) with that title being registered on 31 July 2008 by the Land Registry.
The proceedings that are the basis of this appeal were begun by NHC, the respondent, against the appellants on 11 March 2009 alleging trespass by the appellants. The appellants counterclaimed alleging trespass by the respondent. At the heart of the defence and counterclaim was the appellants' argument that they had acquired prescriptive title to the disputed land, based on long possession, which gave rise to an overriding interest under section 28(f) of the LRA; and that they were therefore entitled to a declaration that they were the lawful owners of the disputed land and were entitled to be registered as owners by rectification of the register.
More specifically, the appellants have throughout submitted that they acquired good title by prescription, applying the law laid down in Article 2103A of the Saint Lucia Civil Code, because of 30 years relevant possession of the disputed land since 1976 at the latest (and indeed they alleged that they and their predecessors had been lawfully occupying the disputed land for over 100 years). Their central argument on this appeal is that, at the start of the Torrens system in 1987, they were in the process of acquiring rights by prescription over the disputed land; and being in that process constituted an overriding interest under section 28(f) of the LRA so that registration was not required. On the appellants' argument, therefore, they acquired title by prescription in 2006 at the latest. That was made up of at least 11 years possession prior to the introduction of the Torrens system (1976 – 1987) and 19 years possession thereafter (1987–2006).
There is no dispute that, at the start of the Saint Lucia Torrens system, an accrued title by prescription fell to be treated in the same way as a documentary title (ie a title by deed). Rather the issue in dispute is how the Torrens system has dealt with rights that, at the time of first registration under the new system, were in the course of (or in the process of) being acquired by prescription (that is, where the relevant possession was for a period of less than 30 years prior to first registration under the new system, which in this case was 23 June 1987).
The High Court and the Court of Appeal dealt with many issues that are not now relevant. On the central issue with which the Board is concerned both the High Court and the Court of Appeal held that the appellants did not have an overriding interest by reason of prescription. This was based on the reasoning that a period of possession prior to first registration under the Torrens system did not count towards the 30 years. In this case the relevant period prior to the commencement of the action for trespass in 2009 was therefore only 21 years (1987 – 2009) which fell short of the required 30 years. The appellants now appeal to the Board.
The two linked statutes implementing the Torrens system were the Land Adjudication Act 1984, which came into force on 8 August 1984, and the Land Registration Act 1984, which came into force on 15 July 1985.
The LAA was concerned with an essentially short-term activity which was to ensure as accurate a record as possible of title to land for the purposes of first registration under the new Torrens system. Section 4 provided for the Minister having responsibility for Agriculture to make orders designating adjudication areas, and to appoint an adjudication officer for each adjudication area. The adjudication officer was to appoint demarcation officers, recording officers and survey officers to act under his direction. Demarcation officers and survey officers were given statutory rights of entry and of requiring information as to the boundaries of land. The Minister was also to appoint a Land Adjudication Tribunal with a legally qualified chairperson to hear appeals from the adjudication officer. We shall now set out in full the sections of the LAA that are most relevant to this case.
“ 2. Interpretation
In this Act, except where the context otherwise requires –
…
‘interest in land’ includes any right or other interest in or over land which is capable of being recorded under the provisions of the Act;
…
5. Adjudication sections
The Adjudication Officer shall divide the adjudication area into two or more adjudication sections or declare the whole area to be a single adjudication section, and shall give each adjudication section a distinctive name.
6. Notice by adjudication officer
(1) The Adjudication Officer shall prepare a separate notice in respect of each adjudication section and in each such notice shall —
(a) specify as nearly as possible the situation and limits of the adjudication section;
(b) declare that all interests in land will be ascertained and recorded in accordance with the provisions of this Act;
(c) require any person who claims any interest in land within the adjudication section to make a claim either in writing or in person or by his agent duly authorised according to law, within the period and at the place and in the manner specified in the notice;
(d) require all claimants to land within the adjudication section to mark or indicate the boundaries of the land claimed in such manner and before such date as shall be required by the Demarcation Officer.
(2) The Adjudication Officer shall —
(a) cause such notices and schedule, if any, to be published at the office of the Registrar of Deeds and such other offices within the State as he thinks fit; and
(b) cause the substance of such notice and schedule if any, to be made known throughout the adjudication area and elsewhere by publication in the Gazette and in at least one local newspaper and in such other manner as he considers to...
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