Zinna Zimbanni (as Personal Representative of the Estate of Adelaide Joseph, deceased) v Computron Ltd

• Jurisdiction: St Lucia
• Judge: Henry JA
• Judgment Date: 10 January 2022
• Judgment citation (vLex): [2022] ECSC J0110-1
• Docket Number: SLUHCVAP2019/0017
• Court: Court of Appeal (Saint Lucia)

[2022] ECSC J0110-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mde. Esco Henry Justice of Appeal [Ag.]

SLUHCVAP2019/0017

Between:

Zinna Zimbanni (As Personal Representative of the Estate of Adelaide Joseph, deceased)

Appellant

and

Computron Limited

Respondent

Appearances:

Ms. Natalie Da Breo for the Appellant

Ms. Paulette Francis for the Respondent

Civil appeal — Land law — Land Registration Act Cap. 5.01 of Revised Laws of Saint Lucia — Land Adjudication Act Cap.5.06 of Revised Laws of Saint Lucia — Land Registration and Titling Project — Appellate court's interference with trial judge's findings of fact — Whether learned judge erred by failing to find respondent's root of title defective — Indefeasibility of title — Section 98 of Land Registration Act — Exceptions to indefeasibility of title — Fraud and mistake — Allegations of fraud and mistake must be expressly pleaded — Failure to introduce issues during trial — Prescription — Article 2057 of Civil Code of Saint Lucia — Article 2057 of the Supreme Court Prescription by 30 years (Declaration of Title) Rules — Possession to be continuous, uninterrupted, peaceable, public and unequivocal — Interruption of prescription by first registration — Whether learned judge erred in fact and law by finding that appellant failed to satisfy requisite 30-year prescriptive period — Overriding interest — Section 28 (f) and (g) of the Land Registration Act — Protection of rights of a person in actual occupation — Whether learned judge erred by finding that appellant had not acquired an overriding interest in subject land under section 28 (f) or (g) of the Land Registration Act — Costs — Prescribed costs — Rule 65.5(2) (b) of Civil Procedure Rules 2000 — Whether learned judge erred in awarding prescribed costs to respondent

This is an appeal arising out of a property dispute between Ms. Adelaide Joseph (“Ms. Joseph”) and Comptron Limited (“Computron”). Ms. Joseph, now deceased, is represented by her personal representative Ms. Zinna Zimbanni.

In November 2007, Computron purchased land being Block 0849D Parcel 284 (“the disputed land”) from Mr. Gilbert Phillip (“Mr. Phillip”), Ms. Joseph's brother. This purchase was executed by Deed of Transfer (“Deed”) from Mr. Phillip to Computron and is evidenced in the Land Register. Prior to this purchase, Ms. Joseph had occupied the disputed land along with a number of other tenants. After the purchase, Computron rented to those tenants their respective holdings and collected the rent. They were later issued with notices to quit the disputed land to facilitate Computron's construction of a commercial building. They all complied and vacated the property. Ms. Joseph had not at that point been served a notice to quit.

Mr. Goddard Darcheville (“Mr. Darcheville”), the managing director of Computron, having developed a friendship with the elderly Ms. Joseph and having noticed that her house was deteriorating and in need of repairs, offered to build her a new 3-bedroom wooden house on neighbouring land owned by another of his companies, CES Ltd. Mr. Darcheville offered that Ms. Joseph would be granted a life interest in the new house, where she could live with her two sons, until her death, at which time it would revert to CES Ltd. While initially Ms. Joseph welcomed the offer, she later refused it, on the basis that she would have only a life interest in the new home. As a result, Computron issued Ms. Joseph a notice to quit the disputed land in March 2014, within one month. Ms. Joseph refused to leave and consequently, Computron sued her in the High Court for possession of the disputed land.

In the court below, Ms. Joseph counterclaimed, contending that she had acquired an overriding interest in the disputed land by virtue of her long occupation of it for over 70 years. She also asserted that she had thereby gained prescriptive title to it and was therefore entitled to legal title of the disputed land. Ms. Joseph also contended that Computron's root of title to the disputed land was defective. She claimed that Mr. Phillip's title and therefore Computron's root of title was null and void because documents in the chain of title, including the Will of Sephanise Joseph (a previous owner), the subsequent probate (“Probate”), vesting deed and vesting assent, were defective.

The learned trial judge held that Ms. Joseph had not made out her claim and dismissed it. The learned judge reasoned that: (i) Ms. Joseph's contentions as to the validity of Mr. Phillip's title were speculative and that Computron was a purchaser for value acting in good faith, having acquired from Mr. Phillip good and indefeasible title to the disputed land, notwithstanding any conceivable defect or infirmity in Mr. Phillip's title; (ii) that in any event the only bases on which rectification of the Land Register could be entertained at that stage were if fraud or mistake was pleaded and established, which she concluded that Ms. Joseph had not alleged and proven; (iii) that Ms. Joseph had not acquired title by prescription because her possession of the land was not as owner but pursuant to permission from the owner; (iv) that Ms. Joseph's claim to an overriding interest under the Land Registration Act (“LRA”) hinged on rights acquired by prescription; (v) Ms. Joseph's failure to prove her claim to prescriptive title meant that any claim to an overriding interest under section 28 (f) and/or (g) of the LRA must fail. Ms. Joseph was therefore directed to deliver up possession of the disputed land and to pay costs of $7500.00 to Computron on its claim and the counterclaim.

Ms. Joseph, being dissatisfied with the learned judge's decision has appealed. The main issues which arise for the Court's determination are: (i) whether the learned judge erred by failing to find that Sephanise Joseph never owned the disputed land; and that her Last Will, the Probate, vesting deed and vesting assent were defective, null and void and rendered Mr. Phillip's and Computron's root of title defective, null and void; (ii) whether the learned judge erred in fact and law, by finding that Ms. Joseph did not possess the disputed land for the requisite 30-year period and did not acquire prescriptive title; (iii) whether the learned judge erred by finding that Ms. Joseph had not acquired an overriding interest in the disputed land under section 28 (f) or (g) of the LRA based on her claim to prescriptive title; and (iv) whether the learned judge erred in awarding prescribed costs of $7,500.00 to Computron in respect of its claim and the counterclaim by Ms. Joseph.

Held: dismissing the appeal; affirming the judgment in the court below; and awarding costs to the respondent on this appeal of no more than two-thirds of the prescribed costs awarded in the court below, that:

• 1. An appellate court may interfere with a trial judge's findings of fact in limited circumstances. It should only interfere with the trial judge's findings of fact if it is satisfied that the trial judge's ruling is unsafe due to a significant error made in assessing the evidence, be it by overlooking or discounting critical material, applying the wrong legal principles to his evaluation of the evidence or for some other substantial reason. In this case, it was open to the learned judge having addressed her mind to the applicable rules of court and having assessed the witnesses, their demeanour, and credibility, to conclude that there was no evidence on which to find that Computron's root of title, Sephanise Joseph's Will, Probate, the vesting deed and vesting assent were defective. Her findings of fact were commensurate with the evidence and the weight that she reasonably ascribed to it. Accordingly, the learned judge's findings in this respect cannot be impugned.

  Watt (or Thomas) v Thomas [1947] 1 ALL E.R. 582 applied; Betteto Frett and Flagship Properties Limited [2011] ECSCJ No. 220 (delivered 27 ^th September 2011) followed; Beacon Insurance Company Limited v Maharaj Bookstore Ltd [2014] UKPC 21 applied.

• 2. In order to be considered, assertions of fraud and mistake must be expressly pleaded by a litigant in the court below. Further, a litigant will not be permitted to introduce at the appellate level, issues which were not before the lower court. In these circumstances, where the appellant, Ms. Joseph, did not expressly plead or outline the essential features of fraud and/or mistake in the court below and belatedly introduced the issues of fraud and mistake before this Court, her contentions regarding mistake and fraud, being new, cannot be entertained.

  Drane v Evangelou and others [1978] 1 WLR 455 considered; Austin Martin, Executor of the Estate of Mary Edith Doreen Grason v The Attorney General of Antigua and Barbuda [2009] ECSCJ No. 347 (delivered 24 ^th April 2009) followed; Newport (Monmouth) Slipway Dry Dock and Engineering Co Ltd v Paynter (1886) 34 Ch D 88 applied.

• 3. In Saint Lucia prescription is governed by Article 2103A of Civil Code and Article 2057 of the Supreme Court – Prescription by 30 years (Declaration of Title) Rules. The conjoint effect of these provisions is that title to land is prescribed by 30 years, during which the possession must be continuous, uninterrupted, peaceable, public and unequivocal. However, where there is first registration of title to land under the LRA, this has the effect of interrupting any period of possession for the purposes of acquiring prescriptive title, which started before or during the Land Registration and Titling Project (“LRTP”). It follows that once possession is interrupted by such first registration, a person seeking to acquire title by prescription or adverse possession must remain in continuous, uninterrupted, peaceable, open and unequivocal possession of the subject land for a...