Trinity Term
[2016] UKPC 22
Privy Council Appeal
No 0085 of 2015
JUDGMENT
Recreational Holdings 1 (Jamaica) Ltd (Appellant) v
Lazarus (Respondent) (Jamaica)
From the Court of Appeal
of Jamaica
before
Lord Neuberger
Lord Mance
Lord Wilson
Lord Carnwath
Lord Hodge
JUDGMENT GIVEN ON
27 July 2016
Heard on 13 June 2016
|
Appellant
Peter Knox QC
Dr Lloyd Barnett
Weiden Daley
(Instructed by
Simons Muirhead and Burton)
|
|
Respondent
Allan S Wood QC
Miguel D A Williams
(Instructed by M A
Law (Solicitors) LLP)
|
the opinion of the board was drafted by LORD WILSON:
1.
A is the registered proprietor of land in Jamaica. Without A’s
permission, B takes possession of the land and remains in open and undisturbed
possession of it for more than 12 years. Thereafter A sells (or purports to
sell) the land to C. C provides valuable consideration and has no notice of B’s
possession of the land. Who owns the land … B or C?
2.
Recreational Holdings 1 (Jamaica) Ltd (“the company”) appeals against
the order of the Court of Appeal of Jamaica dated 30 September 2014. By a
judgment delivered by Morrison JA, with which Panton P and Phillips JA agreed,
the court, save in one irrelevant respect, dismissed the company’s appeal
against an order of Kirk Anderson J (“the judge”) dated 19 September 2012. By
his order, the judge, by way of summary judgment, held that ownership of
certain land which was in dispute between the company and Mr Carl Lazarus, the
respondent to the present appeal, was vested in Mr Lazarus.
3.
The disputed land is an area of nine acres in the parish of St Thomas,
adjacent to the Yallahs River. It forms part of a parcel of land of more than
300 acres known as Windsor Lodge, located partly in the parish of St Thomas and
partly in that of St Andrew.
4.
In 1978 Windsor Lodge was first brought under the operation of the
Registration of Titles Act (“the Act”) pursuant to the procedure set out in
sections 24 to 42. The Registrar of Titles thereupon registered Mr Clinton McGann as the owner of Windsor Lodge.
5.
In 1987 the Registrar registered Mr Lazarus as the owner of about 27
acres of land in the parish of St Thomas. He had purchased the land in 1985. Of
those 27 acres, 18 adjoin Windsor Lodge to the east. The remaining nine acres
represent - unfortunately - the disputed land itself. The dual registration of
the disputed land in favour of different apparent owners was to precipitate in
the lower courts a particular line of argument now no longer pursued.
6.
Unsurprisingly Mr Lazarus regarded himself as the owner of the disputed
land. The evidence given by him and on his behalf, to which, according to the
trial judge, the company had no real answer, was that in 1986 he had erected a
wire fence around what he understood to be his property, thus including the
disputed land within the fence; that at about the same time he built a wooden
shed on it for storage; that in 1987 and 1988 he constructed a small concrete
house on it, where he stayed at weekends; and that from 1985 onwards he had
been planting trees on it, including coconut, guava, avocado, naseberry, papaya
and banana, and harvesting the fruit.
7.
In 1999 it came to the attention of Mr Lazarus and apparently also of Mr
McGann that the disputed land was registered as belonging to each of them. In a
letter to the Registrar dated 22 October 1999, attorneys instructed by Mr
Lazarus claimed that the inclusion of the disputed land within Mr McGann’s
title to Windsor Lodge had been in error. But it is unclear what action, if
any, the Registrar took in response to the letter; and neither of the
registered owners took any further step to resolve the contradiction. The
evidence of Mr Lazarus was that, following the date of the letter, his open,
undisturbed, exclusive and intentional possession of the disputed land, which
had begun (so it will be safe to assume) in 1986, continued for a further 12
years, ie until 2011.
8.
In February 2011 Mr McGann sold, or purported to sell, to the company
all the land comprised in the title to Windsor Lodge at a price of Jamaican
$33.4m. In April 2011 the company was registered as the new proprietor of
Windsor Lodge. In July 2011 it erected a fence around the disputed land; and
within weeks proceedings to resolve the dispute about ownership of the land
were issued, first by the company and then also by Mr Lazarus. The company
relied on its certificate of title to the land. Mr Lazarus relied on his
adverse possession of it since 1986, and the legal effect allegedly ascribed to
it by the conjunction of sections 3 and 30 of the Limitation of Actions Act
(“the Limitation Act”). Section 3 provides:
“No person shall make an entry [on
to land], or bring an action … to recover any land … but within 12 years next
after the time at which the right to make such entry, or to bring such action
…, shall have first accrued …”
Section 30 provides:
“At the determination of the
period limited by [section 3] to any person for making an entry, or bringing
any action …, the right and title of such person to the land … for the recovery
whereof such entry, action … might have been made or brought within such
period, shall be extinguished.”
9.
The judge held, without objection on the part of Mr Lazarus, that, of
the two registered titles to the disputed land, the effective registration was
that in favour of the company. Section 70 of the Act, to which the Board will
return in para 16 below, provides that:
“… the proprietor of … any estate or interest in
land under the operation of this Act shall, except in case of fraud, hold the
same as the same may be described or identified in the certificate of title,
subject to … [recorded] incumbrances … but absolutely free from all other
incumbrances whatsoever, except the estate or interest of a proprietor claiming
the same land under a prior registered certificate of title, and except …”
Mr Lazarus’ certificate of title had not been registered
prior to registration of the certificate of Mr McGann. So the latter prevailed.
10.
Nevertheless, in contending that it had a real prospect of successfully
defending his claim to ownership of the disputed land by adverse possession,
the company sought to rely on Mr Lazarus’ certificate of title. Its main
argument before the judge, which remained its first ground of appeal to the
Court of Appeal, was that Mr Lazarus’ possession could not be adverse if it
arose under cover of a registered title. The company relied, for example, on
the observation of Lord Millett in a judgment delivered on behalf of the Board
in Ramnarace v Lutchman, [2001] 1 WLR 1651, at para 10 that
“[p]ossession is not normally adverse if it is enjoyed by a lawful title or
with the consent of the true owner”. But the difficulty for the company’s
argument was, as the judge and the Court of Appeal both held, that Mr Lazarus’
registered title, far from being lawful, was entirely ineffective.
11.
Before the Court of Appeal, however, the company added a second ground
of appeal; and this is the ground which, although rejected by that court, it
pursues before the Board. The ground is that, by reason of the Act, the title
to the disputed land registered in 2011 in the name of the company, as the bona
fide purchaser of it for value, could not be displaced by any period of
adverse possession, such as that of Mr Lazarus, which had begun prior to the
registration in 2011.
12.
The company’s reliance upon this ground faces an initial difficulty. It
is in conflict with the opinion of the Board on an appeal from the Court of
Appeal of Jamaica in Chisholm v Hall [1959] AC 719.
13.
In the Chisholm case the parties owned adjoining properties at
105 and 103 King Street in Kingston. In 1902 a fence was erected to mark the
boundary between them. Unfortunately it was erected in the wrong place. It
purported to enclose within the property at 105 King Street a strip of land
about seven feet wide which was then part of the property at 103 King Street
(“the disputed strip”). In 1928 the then owner of 105 King Street sold it to D.
On 12 March 1928, in anticipation of the sale, the vendor brought 105 King
Street under the operation of the Act by registering herself as its proprietor
and on 16 April 1928 D was registered as its proprietor instead. From 1928
onwards, because of the misalignment of the fence, D was in continuous, open,
adverse possession of the disputed strip. The adjoining property, namely 103
King Street, had come under the operation of the Act in 1901; and in 1919,
following the death of the registered owner, the Administrator General, as
administrator of his estate, was registered as its proprietor instead. In 1941
the Administrator General came to sell 103 King Street but he discovered that
he had lost the certificate issued in 1919. So on 16 October 1941 he obtained a
replacement certificate and this enabled him to sell the property to P, whose
title was registered a fortnight later (30 October 1941). P was a bona fide
purchaser of it for value.
14.
In the Chisholm case it was in 1951 that P brought his claim
against D to be entitled to the disputed strip. One of D’s defences, being the
defence which prevailed before the Board, was that he had been in adverse
possession of it for 12 years prior to 1951 and so had then become its owner
under sections 3 and 30 of the Limitation Act. Clearly he could not establish
12 years from the date in 1941 when the replacement certificate was issued to
the Administrator General nor indeed from the date a fortnight later when P
became its registered proprietor. The opinion of the Board, however, was that D
was entitled to rely, even as against P, on his adverse possession of it ever
since 1928.
15.
Now it is true that in the Chisholm case the optimistic
submission of P before the Board was that the period of D’s adverse possession
had ended - and so had needed to start to run again – on 16 October 1941, when
the replacement certificate was issued to the Administrator General, rather
than that it had ended on 30 October 1941, when P’s title was registered. But
nothing turned on the gap of a fortnight. The Board was well aware that, in
upholding D’s appeal, it was holding that a bona fide purchaser for
value of land, such as P, took it subject to unregistered rights acquired by
adverse possession, which had accrued (or presumably were in the course of
accruing) prior to registration of the purchaser’s title.
16.
On what basis did the Board in the Chisholm case reach its
conclusion? At p 734 it described two sections of the Act as being critical to
the resolution of that case, namely the sections now numbered 68 (then 67) and
70 (then 69). Section 68 provides:
“… 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 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 … the land therein described is seised or possessed of such
estate or interest …”
The main part of section 70 has largely been set out in
para 9 above. It provides that, apart from incumbrances recorded on the
certificate of title and subject to cases of fraud and to two further specified
exceptions, the registered proprietor holds the land “absolutely free from all
other incumbrances whatsoever”. But then follows a proviso which reads:
“Provided always that the land
which shall be included in any certificate of title … shall be deemed to be
subject to … any rights acquired over such land since the same was brought
under the operation of this Act under any statute of limitations, and to any
public rights of way … and to any unpaid rates…and also to the interests of any
tenant of the land for a term not exceeding three years, notwithstanding the
same respectively may not be specially notified as incumbrances in such
certificate …”
17.
It was a central plank of P’s submission to the Board in the Chisholm
case (upon which the company constructs a similar argument in the present
appeal) that the word “subsequent” in section 68 meant “subsequent to the issue
of the certificate”, with the suggested result that, because the period of
adverse possession since 1941 had been less than 12 years, the section rendered
his certificate conclusive evidence of his ownership of the disputed strip. The
Board accepted at p 736 that, had it stood alone, section 68 might have been so
construed; but it explained at pp 737-739 that, in the light of the express
reference in the proviso to section 70 to rights under any statute of
limitations “acquired over such land since the same was brought under the
operation of this Act”, the word “subsequent” in section 68 also meant
“subsequent to the first registration”. The Board continued at p 739:
“The scheme of section 70 is
reasonably plain. The registration of the first proprietor is made to destroy
any rights previously acquired against him by limitation, in reliance, no
doubt, on the provisions as to the investigation of the title to the property
and as to notices and advertisements, which are considered a sufficient
protection to anyone claiming any rights of that description. But from and
after the first registration the first proprietor and his successors are
exposed to the risk of losing the land or any part of it under any relevant
statute of limitations to some other person whose rights when acquired rank as
if they were registered incumbrances noted in the certificate, and accordingly
are not only binding upon the proprietor against whom they are originally
acquired but are not displaced by any subsequent transfer or transmission.”
18.
In the Chisholm case the Board proceeded at p 742 to overrule a
decision of the Supreme Court of Jamaica in 1931 in Goodison v Williams,
Clark’s Reports 1917-1932, 349. In the Goodison case, the facts of
which are indistinguishable from those in the present case, the Supreme Court
had, by a majority, upheld the registered title of the bona fide
purchaser for value as against the unregistered rights of an adverse possessor
which had accrued against the purchaser’s vendor.
19.
Mr Knox QC on behalf of the company seeks to persuade the Board to depart
from its decision in the Chisholm case; and the Board knows of few
advocates who could have presented the company’s case more attractively. His
general contentions are that, in focussing primarily on sections 68 and 70 of
the Act, the Board in the Chisholm case surveyed the Act too narrowly;
that, in the words of the preamble to the first version of the Act passed in
1888, its purpose was “to give certainty to the Title to Estates in Land, and
to facilitate the proof thereof, and also to render dealings with Land more
simple and less expensive”; that a central feature of the Torrens system of
land registration adopted in the Act was to relieve the prospective bona
fide purchaser for value of land from any need to examine the vendor’s
title otherwise than by reference to the certificate issued to him; that it had
been open to Mr Lazarus from 1998 onwards to have lodged a caveat with the
Registrar under section 139 of the Act, whereupon under section 140 Mr McGann
could have initiated proceedings before a judge of the Supreme Court to
determine the validity of Mr Lazarus’ claim to title by adverse possession;
that alternatively Mr Lazarus could then have applied to the Registrar under
section 85 of the Act to be registered as the proprietor of the disputed land in
fee simple, whereupon under section 86(2) Mr McGann could have initiated
analogous proceedings; that, in that he had not pursued the issue raised by his
attorneys in their letter to the Registrar dated 22 October 1999, Mr Lazarus
was the author of his own misfortune; and that the construction of the Act
favoured by the Board in the Chisholm case placed a bona fide
purchaser of land for value in an impossible position in that an adverse
possessor of land for 12 years would continue to hold the rights thereby
obtained even if thereafter he were to cease to be in actual occupation of the
land and so were to be effectively undiscoverable by that purchaser.
20.
But Mr Knox has three particular contentions, each relative to a section
of the Act.
21.
First, section 161. On the face of it the section exhaustively
identifies six different situations in which entitlement to land may
successfully be asserted against its registered proprietor. None of those
situations, says the company, applies to an action by an adverse possessor such
as Mr Lazarus to assert entitlement to land against a bona fide
purchaser of it for value such as itself. As will be seen, the section refers
to an action for the “recovery” of land. But, even if (as to which the judge
made no finding) Mr Lazarus remained in actual occupation of the disputed land
at the time of the issue of his proceedings, the company is right to describe
them as an action for “recovery” of it because in this context to “recover” is
widely defined to mean to “obtain any land by judgment of the Court”: Williams
v Thomas [1909] 1 Ch 713 at 730, Buckley LJ.
22.
Section 161 provides:
“No action of ejectment or other
action … for the recovery of any land shall lie … against the person registered
as proprietor thereof under the provisions of this Act except in any of the following
cases, that is to say -
(a) the case of a mortgagee
as against a mortgagor in default;
(b) the case of an
annuitant as against a grantor in default;
(c) the case of a lessor as
against a lessee in default;
(d) the case of a person
deprived of any land by fraud as against the person registered as proprietor of
such land through fraud, or as against a person deriving otherwise than as a
transferee bona fide for value from or through a person so registered
through fraud;
(e) the case of a person
deprived of or claiming any land included in any certificate of title of other
land by misdescription of such other land, or of its boundaries, as against the
registered proprietor of such other land not being a transferee thereof bona
fide for value;
(f) the case of a
registered proprietor with an absolute title claiming under a certificate of
title prior in date of registration under the provisions of this Act, in any
case in which two or more certificates of title … may be registered … in
respect of the same land,
and in any other case … the
production of the certificate of title … shall be held … to be an absolute bar
… to any such action against the person named in such document as the
proprietor … of the land … any rule of law or equity to the contrary
notwithstanding.”
23.
The company correctly draws a parallel between sections 161 and 70 of
the Act. In para 16 above the Board noted that, under the main part of section
70, the indefeasibility of the rights to the land of the registered proprietor
was subject to recorded incumbrances, to cases of fraud and to two other
specified exceptions. Section 3 of the Act defines the word “incumbrance”
widely enough to include not only mortgages and annuities charged on the land
but also leases and so the reference in section 70 to recorded incumbrances is
reflected in cases (a), (b) and (c) in section 161. The reference in section 70
to the case of fraud is reflected in case (d). The first of the two further
exceptions in section 70 is the case, like the present, of land included in two
certificates and the vulnerability of the holder of the later certificate to
dispossession; this is reflected in case (f). The second further exception in
section 70 is a claim to ownership of land wrongly described in another
person’s certificate; and this is reflected in case (e).
24.
The submission of the company is that the six cases specified in section
161 of the Act exhaustively describe the claims which can be made to recover
land from its registered proprietor. Section 161 is, so it submits, the pivot
around which, and therefore necessarily consonant with which, the other
provisions of the Act (in particular the proviso to section 70) turn. It cites
the Opinion of the Board in Pottinger v Raffone [2007] UKPC 22, on
appeal from the Court of Appeal of Jamaica, in which Lord Rodger of Earlsferry
on its behalf said:
“20. The main aim of this
system of registration of title is to ensure that, once a person is registered
as proprietor of the land in question, his title is secure and indefeasible
except in certain limited circumstances which are identified in the
legislation. This is achieved by section 161 …”
25.
But it is important to note the facts in the Pottinger case. Mr
Pottinger had indeed been an adverse possessor of land for 12 years but he had
then successfully applied under section 85 of the Act to be registered as its
proprietor. Ms Raffone, who had entered into a contract for the purchase of the
land from the previous registered proprietor, challenged Mr Pottinger’s
entitlement to the land. She contended - in the event unsuccessfully - that he
had obtained his registration by fraud. So her case fell squarely within
section 161(d). The Board was not required to consider where, if at all, the
claim of an unregistered adverse possessor against the registered proprietor
fits into section 161 and so it made no mention of the proviso to section 70.
26.
The company argues that the claim of an unregistered adverse possessor
fits into section 161(e) of the Act. Its argument is that when, in 1998, Mr
Lazarus achieved 12 years of adverse possession of the land, there arose in Mr
McGann’s certificate of title a “misdescription”: for his title to the land had
been extinguished under section 30 of the Limitation Act and yet his
certificate continued to include it. Thus (so its argument continues) section
161(e) would have given Mr Lazarus from 1998 onwards the ability to assert his
rights against Mr McGann or, for that matter, against a transferee of Mr McGann
who had not given value. But (so its argument concludes) section 161(e) is
explicit: no such claim lies against “a transferee thereof bona fide for
value” … such as itself.
27.
In its Opinion in the Chisholm case the Board did not mention the
section now numbered 161. It follows that it expressed no view on the argument
now constructed upon section 161(e). But in the view of the present panel the
argument is too far-fetched: an accurate description does not become a
“misdescription” as the years pass, as rights fall and as others arise.
Misdescription involves error at the time of description. If the analogous
reference in the main part of section 70 to the inclusion of land in a certificate
by “wrong description” had been apt to describe the basis of an adverse
possessor’s claim against a registered proprietor, Parliament would have had no
need to cater for his claim in the proviso.
28.
The fact is that, contrary to appearances, section 161 does not provide
exhaustively for all the claims for the recovery of land which can be made
against its registered proprietor. It provides for all the claims identified in
the main part of section 70 but not for any of the claims identified in the
proviso (set out, so far as relevant, in para 16 above). Take (as Lord
Neuberger suggested in the course of the argument) the tenant for a term of
three years or less. If wrongly dispossessed by the registered proprietor, the
proviso entitles him to recover possession. Yet he does not fall within any of
the six cases specified in section 161.
29.
The Real Property Act in force in Trinidad and Tobago has
many similarities with the Act. In particular section 143 of the Real Property
Act, although compressing the six cases into four, is, for all relevant
purposes, identical to section 161 of the Act; and, in particular, section
143(c) specifies the case of misdescription in terms effectively identical to
those of section 161(e). In Republic Bank Ltd v Seepersad, S268
of 2014, the Court of Appeal of Trinidad and Tobago, by judgments delivered as
recently as 27 April 2015, held that, were the respondent able to establish his
claim of adverse possession of land since 1965, his as yet unregistered rights
would prevail over the registered rights of bona fide purchasers for value of
the land in 2011 and over those of their mortgagee. In giving the only
substantive judgment Mendonça JA observed at
paras 45 and 46 that none of the four cases identified in section 143 of the
Real Property Act included the claim of an adverse possessor and that it was
wrong to read section 143 in isolation from the other provisions of the Act.
The Board respectfully agrees.
30.
Second, section 71. This provides:
“Except
in the case of fraud, no person … taking … a transfer … from the proprietor of
any registered land … shall be affected by notice, actual or constructive, of
any trust or unregistered interest, any rule of law or equity to the contrary
notwithstanding …”
The company argues that, at the time of its purchase of the
land in 2011, Mr McGann, having in 1998 suffered the extinction of his right
and title to it under section 30 of the Limitation Act, nevertheless remained
its registered proprietor and so must be regarded as a bare trustee holding it
from then onwards on trust for Mr Lazarus as its beneficial owner; and that the
effect of section 71 is that, even if, at the time of its purchase, it had
notice of the rights of Mr Lazarus under the trust (which it did not), the
company would not have been affected by them.
31.
It would be extraordinary if the effect of a proviso to section 70 of
the Act which expressly preserved unregistered rights under any statute of
limitations was to be negatived by reference to a trust in the section which
immediately follows it. But it is clear that in Jamaica the relationship of Mr
McGann and Mr Lazarus after 1998 was not one of legal owner and equitable
owner. In In re Atkinson and Horsell’s Contract [1912] 2 Ch 1 Cozens-Hardy MR described at p 9 the effect of the statutory provision in
England equivalent to section 30 of the Limitation Act as being that “the
person who has been in possession for more than the statutory period [gets] an
absolute legal estate in the fee”. Indeed the fact that the land has been
brought under the operation of the Act makes no difference. In an illuminating
article entitled “The Land Registration System and Possessory Titles - A
Jamaican Perspective”, (1998) WILJ 72, Dr Barnett explains:
“13. On the effluxion of the
statutory periods, the Limitation Act expressly extinguishes the title of the
owner who has been out of possession and implicitly confers a good and legal
title on the adverse possessor. Since he can no longer be ejected by the former
owner whether he was registered or not or by any third party he acquires a
right in rem.”
Under section 75(1) of the Land Registration Act 1925 which
was introduced in England and Wales (and is now repealed), the registered
proprietor was indeed to be deemed to hold the land in trust for the adverse
possessor. But this new concept was “wholly inconsistent with the conceptions
of the Limitation Acts as previously understood” (Fairweather v St
Marylebone Property Co Ltd [1963] AC 510, 542, Lord Radcliffe). Nothing
equivalent to section 75(1) has ever been introduced in Jamaica.
32.
Third, section 163. This provides:
“Nothing in this Act contained
shall be so interpreted as to leave subject to an action for the recovery of
the land ... any purchaser bona fide for valuable consideration of land
under the operation of this Act, on the ground that the proprietor through … whom
he claims may have been registered as proprietor through fraud or error…and
this whether such fraud or error shall consist in wrong description of the
boundaries or of the parcels of any land, or otherwise howsoever.”
The company argues that loyalty to the purpose behind the
Act, namely to give nearly paramount effect to a registration, demands that a
broad construction be given to section 163; that the words “or otherwise
howsoever” show that there is no limit to the type of error which it addresses;
that indeed there came a time, namely in 1998, when Mr McGann became registered
as proprietor through error; and that therefore the section precludes Mr
Lazarus from recovering the land from the company, as a purchaser bona fide
for valuable consideration, on the grounds of his adverse possession and, in
consequence, of Mr McGann’s erroneous registration.
33.
The Board regards it as impossible to accept that Mr McGann was
registered as proprietor of the land through error. The company’s argument
about the meaning of “error” in section 163 fails in effect for the same
reasons as have precipitated the failure of its argument about the meaning of
“misdescription” in section 161(e); indeed it is noteworthy that the first
example of error given in section 163 is “wrong description”. The Board is not
prepared to shoe-horn the facts of the present case into section 163 when the
result would be to negative the clear words of the proviso to section 70.
34.
So the Board rejects each of the company’s contentions. It concludes as
follows:
(a)
the Board’s Opinion in the Chisholm case was correct;
(b)
the proviso to section 70 of the Act explicitly subordinates the title
of the registered proprietor to such unregistered rights under the Limitation
Act as have begun to accrue since the first registration under the Act; and no
exception is made, as it is elsewhere in the Act, for the registered proprietor
who can claim to have been a bona fide purchaser for value;
(c)
section 68 of the Act does not (to borrow the word from Mr Knox) trump
the proviso to section 70 because, as was held in the Chisholm case, the
word “subsequent” in section 68 means “subsequent to the first registration”,
with the result that section 68 is complementary to the proviso;
(d)
notwithstanding the near paramountcy under it of the registered title
and the often favoured status under it of the bona fide purchaser for
value, the Act does nothing to disturb this obvious conclusion: that, if the
vendor’s title has been “extinguished” under section 30 of the Limitation Act,
there remains no title for the vendor to pass…and none for his purchaser to
receive; and
(e)
the decision of the Court of Appeal, explained in a judgment of Morrison
JA to the clarity of which the Board pays respectful tribute, was correct.
35.
In passing the Act in 1888 Parliament was deciding how best to allocate
risk in circumstances where an innocent purchaser buys land subject to
unregistered rights of adverse possession. It decided that the risk of failing
to secure title should be allocated not to the adverse possessor, but instead
to the innocent purchaser who should be confined to his right to damages
against his vendor for breach of contract. In the article which the Board has
already praised at para 31 above, Dr Barnett writes:
“4. From a practical point
of view, the major qualification of the principle of indefeasibility [of the
registered title] is the possessory title. This is especially so, because of
the number of landowners who have migrated, the shortages and high cost of good
agricultural or building land, the widespread squatting on lands which prevails
throughout Jamaica, and the highly developed techniques of capturing land.
Section 70 contains the relevant statutory provision.”
36.
The Board will therefore humbly advise Her Majesty that this appeal
should be dismissed and that, subject to any submissions which it may file
within 14 days of the date of the promulgation of this Opinion, the company
should pay the costs of Mr Lazarus in relation to it.
