William Quinto and Another v Santiago Castillo Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Phillips of Worth Matravers |
| Judgment Date | 28 April 2009 |
| Neutral Citation | [2009] UKPC 15 |
| Court | Privy Council |
| Docket Number | Appeal No 27 of 2008 |
| Date | 28 April 2009 |
[2009] UKPC 15
Present at the hearing:-
Lord Phillips of Worth Matravers
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
Lord Mance
Privy Council
[Delivered by Lord Phillips of Worth Matravers]
This appeal raises issues of both law and fact in respect of the effect of the Torrens system of land registration, as enacted by the Registered Land Act 1974 ("the Act"), which forms Chapter 194 of the Laws of Belize. In issue is title to a parcel of land which has been registered as Parcel 869, Block 16 Caribbean Shores ("Parcel 869"). Parcel 869 was owned by the appellants ("the Quintos"). A woman called Ann Williams, who had no claim to ownership of Parcel 869, succeeded in getting herself registered as the proprietor of that parcel. She then sold it to the respondent ("Santiago"), which obtained registration as proprietor in Ann Williams' place. The Quintos claimed an order for the rectification of the register so as to substitute themselves as proprietors of Parcel 869. Their claim was consolidated with a claim by the Registrar of Lands, who sought similar relief. Each claim was commenced by Originating Summons and was brought against both Ann Williams and Santiago. The Quintos' summons was filed on 3 February 2005 and the Registrar's on 22 February 2005.
Conteh CJ granted the appellants the relief that they sought. His judgment was reversed on appeal by the Court of Appeal of Belize (Mottley P, Sosa and Morrison JJA). The Quintos appeal against their decision, having been granted leave to do so by that court.
The Quintos' original title to Parcel 869.
Parcel 869 is a substantial piece of land that extends from what is now called Northern Highway to Haulova Creek in Belize City. The Creek frontage extends about 300 feet. The Quintos acquired title to Parcel 869 at a time when registration of land in Belize was governed by provisions of the Law of Property Act 1954 and the General Registry Act 1954. William Quinto acquired registered title to the parcel on 31 December 1973. On 12 February 1981 he transferred that title to himself and his son Jimmy. Again the title was duly registered.
The Torrens system in Belize
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 reassurance that the vendor has good title. Under some systems once a title is registered it is indefeasible. Under other systems the title of a bona fide purchaser from the registered proprietor will, once it is registered, be indefeasible. The indefeasibility of title is, however, capable of giving rise to injustice if the registration of the title is brought about by fraud, or by a mistake. For this reason, many Torrens systems make provision for rectification of the register, but the nature of such provision varies from system to system. The effect of each depends on its own terms.
The regime introduced in 1954, under which the Quintos had registered their title, had not resulted in universal registration. The Act provides for the progressive replacement of the old regime with a universal system of compulsory registration. Under section 4 the Minister is entitled to declare an area a compulsory registration area with effect from a specified date. He made such a declaration in relation to the area that included Parcel 869 on 20 October 1981, and it was at this point that the parcel was designated as Parcel 869. Section 11 of the Act specified the effect of this declaration:
"From the date of any Order made by the Minister under section 4, all dealings relating to any land in the compulsory registration area named in that Order shall be made in accordance with this Act, and no dealing made otherwise than in accordance with this Act shall have any validity or effect."
Section 12 provided what should then happen in relation of land that had been registered under the old regime:
"12. (1) On the declaration by the Minister of a compulsory registration area under section 4 the Registrar shall, in relation to every parcel of land situated in that area the title to which is already registered under the General Registry Act, prepare a register in the prescribed form showing all the subsisting particulars registered under that Act.
(2) Any person having an interest in any parcel of land registered under the General Registry Act shall be given notice in writing by the Registrar that the particulars of the said registration have been transferred to the Land Register compiled under this Act and thereupon the General Registry Act shall cease to apply to such parcel and this Act shall apply thereto."
Section 13 made provision for dealing in land that had not been registered under the old regime.
"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 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."
Unhappily the Land Registry was not provided with the resources needed to implement the provisions of section 12. What appears to have occurred is that, whether land was registered under the old regime or not, registration under the Act was carried out piecemeal on application by proprietors in accordance with the provisions of section 13. Section 159 of the Act provides that, upon first registration of any land under the Act, the General Registry Act and the Law of Property Act shall cease to apply to such land.
Section 26 of the Act provides that registration of any person as the proprietor with absolute title of a parcel shall vest in that person absolute ownership of that parcel, subject to any leases, charges or other encumbrances shown on the register. Section 41 provides:
"41. (1) No person dealing or proposing to deal for valuable consideration with a proprietor shall be required-
(a) to inquire or ascertain the circumstances in or the consideration for which such proprietor or any pervious proprietor was registered or the manner in which any such consideration or part thereof was utilised;
(b) to search any register kept under the General Registry Act."
Section 86 of the Act provides that transfer of land shall be completed by the registration of the transferee as proprietor of the land.
Section 7 of the Act gives the Registrar wide powers to call for documentation and information and to refuse to proceed with any registration in the event of a failure to comply with such requests. Section 135 gives the Registrar the power, for the prevention of fraud or improper dealing or for any other sufficient cause, to make an order prohibiting or restricting dealings with any particular land, and section 136 provides that, in that event, no instrument inconsistent with that order may be registered.
The most critical provisions of the Act in the context of this appeal are those dealing with rectification:
"Rectification and Indemnity
…
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."
The evidence
Ann Williams was, at the outset of the hearing, represented by counsel who told Conteh CJ:
"Ann Williams concedes that …a mistake may have occurred in the first issuance of the first title, however since that title is no longer in existence, our client did not see fit to file an affidavit …and will not contest the claim."
The parties had filed evidence in the form of affidavits and before the hearing it was not clear whether applications would be made to cross-examine the deponents. At the commencement of the hearing Mr Elrington SC for Santiago stated that the only witness whom he wished to cross-examine was Ms Enid Welch, the Registrar of Lands. Mr Elrington said that he intended to rely on the affidavit of Santiago Castillo Junior ("Mr Castillo"), the Managing Director and Chief Executive of Santiago. Neither of the claimants' counsel sought to cross-examine this deponent. When the Registrar came to be cross-examined, Mr Elrington did not challenge any of the facts that she had set out in her affidavit. Rather he concentrated his energies on seeking to elicit from her agreement to what was in effect a proposition of law, namely that under the Act one needed to look no further than the register in order to see whether a vendor was in a position to give good title as the proprietor of the estate being transferred.
Thus Conteh CJ had to found his judgment on affidavit evidence that had not been challenged in cross-examination. A number of documents were exhibited by the Registrar to her affidavit, some of which bore dates that antedated the dates on which she stated that they had been drawn up. This reflects a practice in the Registry of antedating documents so as to show, not the dates of drawing up documents, but the earlier dates...
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