Duncanson & Co (Beryn Duncanson DBA ) -v- East Wind Development Company Ltd and ors (2) Beryn Duncanson ( Duncanson & Co DBA)-v- The Registrar of Lands and ors. (CL-AP 14 of 2023) [2023] TCACA 15 (27 October 2023)


Appeal – Attorney’s Lien – Restrictions – Registered Land Ordinance – Interest in Land – Trust - Equitable Interest

Case summary

CL Action No 150 of 2022 begun by Originating Summons claims against the defendants that at all material the settlement agreement under which he claims created at common law a trust for sale and an equitable interest in all future net proceeds of sale and an unregistrable equitable interest in all “Phase II Lands 40311/31&32), that East Wind Development Ltd ( “EWD”) at all material times was and is trustee of same for the plaintiffs, and that any deviation from the settlement agreement without the plaintiffs consent constitutes a breach of trust. On this basis the appellant applied to lodge a caution on lands belonging to the Respondents. This was refused by the Registrar of Lands. Subsequently the Registrar on his own accord lodged a restriction on the said lands belonging to the respondents and stated a case for the opinion of the Supreme Court under S. 146 of the Registered Land Ordinance seeking clarification on his decision to lodge such a restriction.

Selochan J. decided that the Registrar of Lands had erred in the exercise of his discretion under s.132 of the Registered Land Ordinance in registering Restrictions against lands (40311/31 & 32) in which the appellant alleged to have an interest.  The Appellant appealed the decision of Selochan J.

HELD: The learned judge was right that the appellant did not have an interest in the property of the Defendants required by the RLO for a restriction to be registered against their properties and the Registrar of Lands was wrong in law to do so. We therefore dismiss the appeal with costs to the respondents to be taxed if not agreed.

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