Sylvina Louisien v Joachim Rodney Jacob
| Jurisdiction | UK Non-devolved |
| Judge | Lord Walker of Gestingthorpe |
| Judgment Date | 09 February 2009 |
| Neutral Citation | [2009] UKPC 3 |
| Court | Privy Council |
| Docket Number | Appeal No 93 of 2007 |
| Date | 09 February 2009 |
[2009] UKPC 3
Present at the hearing:-
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Brown of Eaton-under-Heywood
Lord Mance
Privy Council
[Delivered by Lord Walker of Gestingthorpe]
Introductory
This is an unfortunate property dispute between different branches of the Felicien family. It is also a striking illustration of how much time, costs and effort can be wasted in interlocutory skirmishing about issues of law while important issues of fact remain unresolved (and indeed have not so far been addressed in any evidence, written or oral). The proceedings have been on foot since 1999, and in the meantime some members of the family (who may have important evidence to give) are getting elderly. The disputed issues of fact include the pedigree of the Felicien family, what happened at the demarcation of the boundaries of the disputed land in 1985, and who (if anyone) is in possession of the disputed land.
The introduction of the Torrens system
In these circumstances the better course (adopted by Mr Guthrie QC in opening the appeal) is to begin with the legal framework. In the early 1980s St Lucia decided to adopt the Torrens system of registration of title to land (named after Sir Robert Torrens, who originally introduced it in South Australia: see Professor Greg Taylor, Is the Torrens system German? (2008) 29 JLH 253). To give effect to this decision two statutes were enacted in 1984, the Land Adjudication Act, Act 11 of 1984, now cap. 5.06 in the Revised Edition of the Laws of St Lucia ("the LAA") and the Land Registration Act, Act 12 of 1984, now cap. 5.01 ("the LRA"). The LAA ("an Act to provide for the adjudication of rights and interests in land and for connected purposes") came into force on 8 August 1984. The LRA ("an Act to make provision for registration of land and for dealing in land so registered and for connected purposes") came into force on 15 July 1985.
This sequence of commencement dates reflects the fact that the LAA provided in detail for the appointment of officers to undertake the task of advertising for and receiving claims to ownership, investigating the claims, adjudicating on rival claims to the same land, and eventually (subject to various processes of review and appeal) passing the results in the form of a certified adjudication record to the Registrar of Lands as the basis for first registration of title under the LRA.
The LAA was therefore concerned with an important but essentially short-term activity, the production of adjudication records which were to form the basis of first registration of title under the LRA. All the officers appointed under the LAA have long since completed their duties. The LRA, by contrast, was a substantial enactment (extending to 119 sections) providing not only for first registration of title to land adjudicated under the LAA, but also for the operation of the whole system of registered land for the indefinite future. So far as the statutes dealt with first registration, however, they were clearly intended to operate consistently with each other.
The Land Adjudication Act
Parts 1 and 2 of the LAA 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 a responsible official with power to administer oaths and take affidavits. He was to appoint demarcation officers, recording officers and survey officers to act under his direction. Demarcation officers and survey officers had 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.
Under Part 3 (Claims and demarcation) the adjudication officer was (section 5) to subdivide his area into two or more adjudication sections, and (section 6) to prepare, publish and advertise a notice inviting claims in respect of each adjudication section, and fixing a time limit for the submission of claims. He had power (section 9) to proceed as if a claim had been made on behalf of owners who were absent or under full age. The demarcation officer was then to give notice (section 10) of any intended demarcation of boundaries, and require every claimant to indicate the boundaries which he claimed. Boundaries of both claimed and unclaimed land, and public rights of way, were the responsibility of the demarcation officer, who had limited powers (sections 11 and 12) to award compensation and costs, and to apportion expenses.
The survey officer was (section 13) responsible for any necessary surveys, and for coordinating progress in a demarcation index map of the whole adjudication section. Section 14 (Duties of recording officer) provided as follows:
"The recording officer shall consider all claims to any interest in land and after such investigation as he or she considers necessary shall prepare in accordance with the provisions of section 18 a record in respect of every parcel of land shown on the demarcation map."
Section 15 (Disputes) provided as follows:
"(1) If in any case—
(a) there is a dispute as to any boundary whether indicated to the demarcation officer or demarcated or readjusted by him or her, which the demarcation officer is unable to resolve; or
(b) there are two or more claimants to any interest in land and the recording officer is unable to effect agreement between them,
the demarcation officer or the recording officer as the case may be shall refer the matter to the adjudication officer.
(2) The adjudication officer shall adjudicate upon and determine any dispute referred to him or her under subsection (1), having due regard to any law which may be applicable, and shall make and sign a record of the proceedings.
(3) Where the adjudication officer has adjudicated on any dispute under this section the Minister or any other person who is dissatisfied with the decision of the adjudication officer shall give written notice to the adjudication officer of his or her intention to appeal."
Part 4 of the LAA (Principles of adjudication and preparation of adjudication record) began with principles (section 16) and rules (section 17) relating to the process of adjudication. Section 17(6) provided:
"Where the persons claiming are entitled as proprietors in common to the unadministered estate of an ascendant who was solely entitled to the land, the recording officer shall record that the heirs of that ascendant are owners of the land."
Section 18(1) provided in detail for the form of the adjudication record in respect of each parcel of land. It was to show (a) the number and approximate area of the parcel; (b) (except for a Crown title) the name and description of the person entitled to be registered as owner, with particulars of his title; (c) particulars of any registerable adverse rights (such as a lease or hypothec); (d) particulars of the guardian of any owner under disability; (e) a list of the documents produced to the recording officer; and (f) the date of completion of the form.
Section 18(2) provided:
"When completed, the form shall be signed by the recording officer and, in the case of privately owned land, shall, where possible, include an acknowledgement signed by the owner of the parcel and by any person recorded under the provisions of subsection (1)(c) as having an interest in such parcel that such owner and every such person accepts the record."
Section 19 (Notice of completion of adjudication record) provided:
"When the adjudication record in respect of any adjudication section has been completed, the adjudication officer shall sign and date a certificate to that effect and shall give notice of the completion thereof and of the place or places at which the same can be inspected together with the demarcation map."
Part 5 of the LAA (Objections and finality) contained (sections 20, 21, 22 and 24) various rights of review and appeal which need not be described in detail, since it is common ground that there was no resort to any of them in this case. Section 23 (Finality of adjudication record) provided:
"After the expiry of 90 days from the date of publication of the notice of completion of the adjudication record or on the determination by the adjudication officer of all petitions and appeals presented in accordance with section 20, whichever shall be later, the adjudication record shall, subject to the provisions of the Land Registration Act 1984, become final and the adjudication officer shall sign a certificate to that effect and shall deliver the adjudication record and the demarcation map to the Registrar together with all documents received by him or her in the process of adjudication."
This section was amended in 1986 to omit the reference to appeals, but nothing turns on that amendment.
The Land Registration Act
Part 2, Division 2 of the LRA provided for the establishment and maintenance of the Land Register. Section 9(1) provided:
"The Land Register shall comprise a register in respect of every parcel which has been adjudicated in accordance with the Land Adjudication Act and a register in respect of each lease required by this Act to be registered."
By section 9(2) the register was to show the land as private or Crown land and the title as absolute or provisional, with a property section, a proprietorship section and an encumbrances section. Section 10 provided:
"Whenever an adjudication record has become final under section 23 of the Land Adjudication Act and the adjudication officer has delivered the adjudication record to the Registrar, the Registrar shall prepare a register for each parcel shown in the adjudication record...
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