Gardener et Al v Lewis
| Jurisdiction | UK Non-devolved |
| Judge | Lord Browne-Wilkinson |
| Judgment Date | 25 July 1998 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No. 25 of 1997 |
| Date | 25 July 1998 |
Privy Council
Lord Browne-Wilkinson,
Lord Jauncey,
Lord Slynn,
Lord Nolan
Lord Hutton
Privy Council Appeal No. 25 of 1997
Real Property - Claim for declaration that the plaintiff was entitled to an interest in registered land to the extent of 3 1/2 acres — Court noted that the registration of title does not give an unchallengeable title to land — Sections 68, 70 and 71 of the Registration of Titles Act — Appeal allowed.
This appeal from the Court of Appeal of Jamaica concerns land situate in Belmont in the Parish of Westmoreland, Jamaica. The whole of the land is registered under a Certificate of Title issued on 14th May 1987 to the appellants, Charles Gardener (sometimes known as Charles Pinnock) and Inez Walker, for an estate as joint tenants in fee simple. In their conduct of the present litigation, the appellants have chosen not to explain how they came to be so registered, choosing instead to rest their case on the bald assertion that they have been advised that the issue to them of the Certificate of Title makes them the legal and equitable owners of the whole of the land.
On the other side, the case made by the respondent, Edward Lewis, is as follows. He deposes that his mother, Alice Gardener, was given the land by her father in 1922, that she lived on the whole of the land exercising all rights of ownership over it until her death in 1975. He produces her last will and testament under which Alice Gardener left Edward Lewis and his brother Clement Noble three and a half acres each out of the land and the remaining one acre was bequeathed to Charles Gardener. Probate of the will of Alice Gardener was on 4th November 1987 granted to Isaac Samuels and Harold Henry, neither of whom is a party to the present proceedings. The respondent's brother, Clement Noble, is not a party to these proceedings but their Lordships were told that he had a separate action against Charles Gardener and Inez Walker claiming his share of the land, which was awaiting the outcome of the present appeal.
The claim in the action is for a declaration that the plaintiff is entitled to an interest in the registered land to the extent of three and a half acres and for orders directing the appellants to take the steps necessary to vest such three and a half acres in the respondent. The claim was upheld by the trial judge and the Court of Appeal.
The case is in a very unsatisfactory state. This is primarily due to the fact that the appellants have been maintaining an entirely erroneous view of the law applicable viz. the view that the registration of their title gives them an unchallengeable title to the whole of the eight acres not only at law but also in equity. They are mistaken.
The position is as follows. The Registration of Titles Act provides for a Torrens system of land registration in Jamaica. Under section 28, a person claiming to be the owner of the fee simple either at law or in equity can apply to have the land brought under the operation of the Act. If he does so, the application is examined by a referee and, if given provisional approval, notice of the claim is advertised. On the successful conclusion of that process a Certificate of Title is registered and a copy of the registered certificate provided to the registered proprietor.
The consequences of registration are laid down by sections 68, 70 and 71 of the Act which, so far as relevant, provide as follows:–
“68. No certificate of title registered and granted under this Act shall be impeached or defeasible by reason or on account of any informality or irregularity in the application for the same, or in the proceedings previous to the registration of the certificate; and every certificate of title issued under any of the provisions herein contained shall be received in all courts as evidence of the particulars therein set forth, and of the entry thereof in the Register Book, and shall, subject to the subsequent operation of any statute of limitations, be conclusive evidence that the person named in such certificate as the proprietor of or having any estate or interest in, or power to...
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Lungrin (Iris) v Monelal & Valentine (Olive)
...the opinion of Lord Browne-Wilkinson at page 6 of Charles Gardener and Inez Walker v Edward Lewis Privy Council Appeal 25 of 1997, or (1998) 53 W.I.R. 236 at 240 which runs thus: "On the other side, it may be that, when the facts are known, the appellants obtained registration of their titl......
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Daley (Rudolph) v RBTT Bank Jamaica Ltd Etal Walters v Rudolph Daley, RBYY Bank Jamaica Ltd, Harley Corporation Guarantee Trust Company Ltd Harley Corporation Guarantee Trust Company Ltd v Etal Walters; Etal Walters v Rudolph Walters and RBYY Bank Jamaica Ltd [Consolidated Suits]
...Committee of the Privy Council has reaffirmed its adherence to the Asset Company interpretation in the case of Gardener v Lewis (1998) 53 W.I.R. 236 (an appeal from Jamaica), expressly approved Frazer v Walker [1967] 1 AC 569, another Privy Council decision (an appeal from New Zealand), in......
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Jamaica Public Service Company Ltd v Rose Marie Samuels
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...paramount that those actions which fall within the prohibition of sections 62 and 63 may not be maintained." 85See Gardener v Lewis [1998] 1 W.L.R. 1535; (1998) 53 W.I.R. 236. 86 Then His Lordship continues thus: "The second observation relates to the power of the registrar to correct entri......