Geoffrey Cobham v Joseph Frett (as personal representative of Thomas Frett, deceased)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Scott of Foscote |
| Judgment Date | 18 December 2000 |
| Judgment citation (vLex) | [2000] UKPC J1218-2 |
| Court | Privy Council |
| Docket Number | Appeal No. 41 of 1999 |
| Date | 18 December 2000 |
[2000] UKPC J1218-2
Present at the hearing:-
Lord Slynn of Hadley
Lord Hope of Craighead
Lord Scott of Foscote
Sir Ivor Richardson
The Rt. Hon. Edward Zacca
Privy Council
[Delivered by Lord Scott of Foscote]
There are two points of importance which arise on this appeal. The first is whether the Court of Appeal adopted the right approach in considering whether a judge's finding should be set aside where it appeared that there had been excessive delay between the conclusion of the trial and the delivery of judgment and where the delay was alleged to have been responsible for errors in the trial judge's findings. The second is the yardstick to be applied where adverse possession is said to be constituted by intermittent or sporadic acts of possession taking place over an extended period of time.
The appeal is against the order dated 2nd July 1998 of the Court of Appeal of the British Virgin Islands (Byron C. J. (Ag.), Singh and Redhead JJ. A.) allowing the appeal by Mr. Thomas Frett against the order of Georges J. dated 21st August 1995. The order had declared that two parcels of land in Tortola, Nos. 30 and 57 of Block 3240A of the Long Look Registration Section, belonged to Mr. Geoffrey Cobham, the appellant before their Lordships. Since the hearing before the Court of Appeal, Mr. Thomas Frett has died. The respondent before their Lordships is Mr. Joseph Frett, his personal representative.
The relevant history of the two parcels of land and the background to the dispute between Mr. Cobham and Mr. Frett can be quite shortly stated. Legislation in the British Virgin Islands in the 1970s required the registration of all land titles. Machinery was established for determining disputes over who was entitled to be registered as owner. Mr. Geoffrey Cobham applied to be registered as the owner of parcels 30 and 57 in the Josiah's Bay area. These were adjoining parcels, with 30 lying roughly to the north of 57. The topography is important. Parcels 30 and 57 are delineated on a plan (the Anker plan). Parcel 57 is shown hatched. Parcel 30 is unhatched. The total area of the two parcels is given as 5.55 acres. The evidence suggests that this may be an overestimate. The acreage of parcel 57, the hatched area, was generally agreed to be about 1.5 acres. The boundary between parcel 30 and parcel 57 consists of a rough track running approximately north-west/south-east. It was, apparently, a public right of way. An old dilapidated wire fence lies on the parcel 30 side, the northern side, of the track but is overgrown with scrub and is not such as to prevent movement of people, or, no doubt, of stock, from one parcel to the other. Parcel 30 consists of a hill with scrub and large boulders. Parcel 57 by contrast is flat, low lying and wet. Depending on the time of year, parcel 57 has on it a large pond. The area of the pond covers sometimes as much as 40 per cent of the surface of the parcel. Parcel 30 has a short sea front; parcel 57 has no sea front but its southern end is surrounded on three sides by parcel 58. Parcel 58 belongs to one or other members of the Frett family. For present purposes it is convenient to treat it as belonging to Mr. Thomas Frett. Save for the dilapidated wire fence already mentioned, parcel 57 is unfenced. In particular, there is no fence, and never has been a fence, between parcel 58 and parcel 57.
When Mr. Cobham applied, on the basis of a paper title, to be registered as the owner of parcels 30 and 57, Mr. Thomas Frett and his brother, Mr. Simon Frett, objected. They claimed to be the owners of parcel 57. The dispute was referred to adjudication (see Land Adjudication Ordinance) and, on 29th September 1972, the Adjudication Officer found in favour of Mr. Cobham:-
"I find therefore, that Geoffrey Cobham purchased the land indicated to me by him and confirmed by the vendor, Maxim Rabsatt, and vendor's agent, Clarence Lettsome, and that the bounds are as shown on Anker's survey plan …"
Following a petition presented by "the Heirs of Thomas Frett" who, their Lordships assume, included both Mr. Thomas Frett and Mr. Simon Frett, the Adjudication Officer, on 19th February 1973, confirmed his previous finding and certified that Mr. Cobham's title to the land shown on the Anker plan (i. e. parcels 30 and 57) was "absolute". Under section 23 of the Ordinance an appeal from the Adjudication Officer's decision lay to the Court of Appeal. Time for appeal was 90 days from the date of the Adjudication Officer's certificate. No appeal was brought. Accordingly, the decision became final as between Mr. Cobham and "the Heirs of Thomas Frett".
Mr. Cobham did not do anything with the land. He was resident in the United Kingdom. He had an agent in Tortola, a Mr. Clarence Lettsome (to whom reference was made by the Adjudication Officer) who was a local farmer. A lady, Jean Green, who lived at Nanny Cay and was personal assistant to Mr. Geoffrey Cobham's father, also appears to have acted as an agent. She gave evidence at trial that, in the late 1970s, she introduced prospective purchasers of the land to Mr. Lettsome and that in the 1980s she visited the land and found that someone had removed a quantity of sand from the land and that trees and bushes had been cut. She said that Mr. Lettsome died in the late 1980s.
In 1984 Mr. Cobham instructed a local estate agent, Ms. Pamela Romney, to sell the land. Over the period between 1984 and 1991 Ms. Romney visited the land on a number of occasions (7 to 10 times a year, she said).
In 1991 Mr. Geoffrey Cobham instructed Mr. Burton Chalwell to survey the land and sub-divide it into potential plots for sale. Mr. Chalwell did so, and a Mr. Fitzpatrick, his wife and a Mr. and Mrs. Hooper signed a contract negotiated by Ms. Romney to purchase the land. The contract was dated 31st July 1991. Mr. Fitzpatrick, like Mr. Chalwell and Ms. Romney, was local. Each of them had had some familiarity with the land for several years before the date of the contract of sale.
The contract fell through. The reason it fell through was a re-emergence of Mr. Thomas Frett's claim to be the owner of parcel 57. In October 1991 Mr. Fitzpatrick on one of his visits to the land noticed that part of the flat land (i. e. parcel 57) had been cleared of vegetation. He saw "backhoe tyre marks". A few days later he went to Mr. Thomas Frett's house on parcel 58 and asked Mr. Frett what he knew about the work that had been done on parcel 57. Mr. Frett said that he had done the work, that the land was his and that he intended "to occupy". Mr. Fitzpatrick inferred, it seems correctly, that Mr. Frett was proposing to build a dwelling on parcel 57 for his own occupation. He notified Mr. Cobham's solicitor.
Litigation then ensued and an ex parte interlocutory injunction was obtained by Mr. Cobham restraining Mr. Frett from entering parcel 57. Mr. Cobham relied on his paper title. He was the registered owner of parcel 57. Mr. Frett's defence was that he had for many years, before and after the adjudication by the Adjudication Officer, been in possession of the land. He claimed a possessory title.
The case came on for trial before Georges J. on 9th May 1994. The trial was not a continuous one. The case was opened and all bar one, Ms. Jean Green, of the plaintiff's witnesses gave evidence on 9th May. These included Mr. Chalwell, Ms. Romney and Mr. Fitzpatrick. The trial then had to be adjourned because Mr. Frett's counsel, Mr. Archibald Q. C., had a commitment in the Court of Appeal in Anguilla. It was not resumed until 13th July. The trial concluded on 14th July. The witnesses in support of Mr. Thomas Frett's possessory title claim included, besides himself, his brother Mr. Simon Frett, Mr. Hugo Hodge who had worked for Mr. Thomas Frett, Mr. Ural Frett, who is the nephew of Mr. Thomas Frett, and Mr. Berchel Wheatley who had worked for Mr. Thomas Frett. All these witnesses were islanders with a long standing acquaintance both with the Josiah Bay area and with Mr. Thomas Frett and his family. Georges J., after the conclusion of counsels' submissions, reserved his judgment.
The judge did not give his judgment until 4th August 1995, over twelve months after the conclusion of the trial. There is no record of any reason for this delay, nor of any complaint or inquiry about the delay made by the parties or their legal representatives. It was put to their Lordships in the appellant's case that Georges J. was the only resident judge in the Virgin Islands in 1994/1995 and that it was generally recognised that the volume of work in the jurisdiction required two full-time judges. No disagreement with this was expressed by or on behalf of the respondent whose counsel, Mr. Archibald Q. C., had been Mr. Thomas Frett's counsel at the trial and in the Court of Appeal – and, for that matter, before the Adjudication Officer in 1973. Whatever may be the explanation for the delay, this is not a case in which the judge lacked notes of the witnesses' evidence or of counsels' submissions with which to refresh his recollection. The record of proceedings prepared for their Lordships includes some 47 typescript pages of the judge's notes. Of these nine pages relate to counsels' submissions and the rest to witnesses' evidence. The notes of witnesses' evidence distinguish clearly between evidence in chief, cross-examination, re-examination and answers given in response to questions by the judge. The text of the notes records some of the linguistic characteristics of the witnesses. There is no reason to doubt their accuracy.
Georges J. found in favour of the plaintiff Mr. Cobham. He gave a detailed judgment running to 31 pages of typescript. In the judgment he...
To continue reading
Request your trial
-
Bangs v Connex South Eastern Ltd
...whether it would be "unfair or unjust to let it stand": see the judgment of the Privy Council delivered by Lord Scott in Cobham v. Frett [2001] 1WLR 1775 at 1783D. Although it was not a case to which article 6 of the Convention applied, the approach is, in my judgment, compatible with the C......
-
Antonia Martial Claimant v The Public Service Board of Appeal Defendant [ECSC]
... ... 38 She denied having any personal issues with Ms. Martial. It was put to her that ... He relied on Thomas Frett v. Geoffrey Cobham 7 to support this ... ...
-
Desmond Bennett v Jamaica Public Service Company Ltd and Another
...a basis for overturning the decision of the court below. Their Lordships inCobham v Frett PCA No 41/1999 (delivered 18 December 2000); [2001] 1 WLR 1775, stated that it must be demonstrated that the delay prejudiced the result. They stated at page 1783H of the reported judgment: ‘In their L......
- Bank St Petersburg PJSC and another v Arkhangelsky and Others
-
Table of Cases
...of Cases xvii Clifford v Challen (Charles H) & Son Ltd [1951] 1 KB 495, [1951] 1 TLR 234, [1951] 1 All ER 72, CA 176 Cobham v Frett [2001] 1 WLR 1775, 59 WIR 161, [2000] All ER (D) 2481, PC 68 Commission for Racial Equality v Dutton [1989] QB 783, [1989] 2 WLR 17, [1989] 1 All ER 306, CA 14......
-
Writing Judgments, Decisions and Awards
...the possibility of a decision (or part of it) being rendered unsafe. The old common law adage of justice delayed being 3 Cobham v Frett [2001] 1 WLR 1775 per Lord Scott of Foscote at 1783–4. 4 Gardiner Fire Ltd v Jones (unreported) 20 October 1998 CA; Keith Davy (Crantock) v Ibatex Ltd [200......