Court name
Court of Appeal of Turks and Caicos Islands
Case number
CL-AP 48 of 2014

Monroe and Another v. The Registrar of Lands (CL-AP 48 of 2014) [2006] TCACA 3 (02 February 2006);

Law report citations
Media neutral citation
[2006] TCACA 3
Coram
Zacca, P
Mottley, JA
Forte, JA

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS

CIVIL DIVISION

CL-AP 48/2014

BETWEEN:

NOEL Monroe

LOUIS RIGBY

APPELLANTS

AND

the registrar of lands

THE ATTORNEY GENERAL

RESPONDENTS

WILLIAM EDWARD RIGBY

PERSON AFFECTED

Before:

The Right Honourable Sir Edward Zacca, President

The Honourable Mr. Justice Mottley, Justice of Appeal

The Honourable Mr. Justice Forte, Justice of Appeal

Heard on February 2, 2016

George Missick for the Appellant

Clemar Hippolyte for the Respondent

Sean O’Neill for the Person Affected

Mottley JA,

1.             By letter dated 15 January 2013, the Registrar of Lands (Ag.) received an application by Noel Munroe and Louis Rigby to be registered as proprietors by prescription of the parcel of land known as Parcel 60604/33 (The Property) in accordance with section 135 of the Registered Land ordinance CAP 9.01 (“RLO”).

2.             Pursuant to section 137 of the RLO, the registrar of Lands (Ag.) caused a notice to be placed in the Gazette and formally notified the registered owner of the property William Edward Rigby of the existing application.

3.             The notice required that any objection to the said application for registration as proprietor of the said property must reach the desk of the Registrar of Lands within 30 days of the said publication.

4.             The prescribed period for receipt of objections was no later than 28 February 2013.

5.             On 22 February 2013, William Rigby, named as the Person Affected in these proceedings filed with the Land Registry correspondence from his attorneys Hugh O’Neill & Co. evidencing his objection together with an affidavit and to which exhibits were attached.

6.             The registrar reviewed all the affidavits together with exhibits filed. The Registrar of Lands ruled that she was not satisfied that on a balance of probabilities the Appellants had proven that they were in continuous uninterrupted possession of the property for a period of 20 years without the permission of any person lawfully entitled to such possession.

7.             By letter dated 28 February 2013, the Registrar of Lands informed the Appellant’s attorney Karram and Missick of her decision; she gave reasons for her decision.

8.             By letter dated 28 August 2013, the Appellant served on the Registrar a notice of Intention to appeal to the Supreme Court purportedly pursuant to section 147 of the RLO.

9.             It is disputed that the Notice had been served on the Land Registry within the time specified in section 147 (1) (i.e within 30 days of the decision). A Notice of intention to appeal was however purportedly served by way of facsimile transmission on March 28, 2013.

10.          It is contended that such notice was not served in accordance with section 151 of the RLO and was therefore invalid. It is suggested that the notice was not received until August 28 2013, some five (5) months after the decision had been made.

11.          The matter came up for hearing on 2 December 2014. After hearing submissions from the parties, the Chief Justice ordered that the Appellant’s case be dismissed on the ground that the Appellant’s Notice of Intention to Appeal given to the Registrar of Lands was out of time, the statutory conditions for appealing having not been met and the Court had no jurisdiction to extend time for appealing set by the RLO>

12.          On 23 December 2014, the appellants filed a Notice of Appeal to the Court of Appeal. The grounds of appeal are as follows:

(i)            The Chief Justice erred in fact and in law in concluding that the Appellants’ appeal to the Registrar of Lands was out of time where the Registrar received notice of the Appellants’ intention to appeal by facsimile on 28 March 2013.

(ii)           Alternatively, if the Appellants required leave to appeal, the learned Chief Justice erred in law in finding that she had no jurisdiction to extend time for appealing.

(iii)          The Chief Justice erred in law in failing to consider that the words “may within thirty days... give the notice to the Registrar of his intention to appeal.” was not mandatory but directory and if the legislature intended the provision to be mandatory it would have provided sanctions for non- compliance with the provision. If the Chief Justice had considered this, she would not have arrived at the decision that she did.

(iv)          The Chief justice erred generally in dismissing the Appellants’ appeal.

13.          Counsel for the Registrar of Lands and the Attorney General raised a preliminary point. It was contended that the Notice Appeal be struck out as disclosing no reasonable grounds for bringing the appeal. It was further contended that the Notice of Appeal and accompanying grounds were frivolous and vexatious and an abuse of the process of the Court. The grounds of the Respondents’ application to strike out the Notice of Appeal were:

(i)            In relation to ground 1 of the Appellants Notice of Appeal to the Court of Appeal, it is the Respondents’ contention that this ground is ill conceived and without merit and must of necessity fail. The Appellants purported Notice of Intention to Appeal the decision of the Registrar of Lands was out of time and therefore invalid in that the said notice had not been served within the time stipulated by section 147 not served in accordance with the provisions of section 151 of the Registered Land Ordinance.

(ii)           In relation to ground 2 of the Appellants Notice of Appeal to the Court of Appeal the Respondents contend that the Ordinance is clear in relation to appeals. It lays down a time of 30 days for the lodging of a Notice to the Registrar of an intention to appeal and gives no power to this Court to extend that time. The Court therefore cannot invoke its inherent jurisdiction so as to arrogate to itself a power to extend the time as limited in Section 147. Therefore the decision of the Supreme Court ought to be confirmed.

(iii)         Even if the Notice of Appeal was validly served the Appellant still has to contend with the hurdle in respect of the Notice of Appeal. Thus, the appellants having filed their notice of intention to appeal was required by Order 55 of the Supreme Court rules to serve a copy of their Notice to Appeal within 28 days of the decision of the Registrar, but in any event no later than 28 March 2012.

(iv)          The purported Notice of Appeal was not served until August 28 2013 some six (6) months after the decision was made.

(v)           The Notice of Appeal against the decision of the Registrar of Lands having been filed outside of the period stipulated by the Supreme Court and the appellants having not obtained an extension of time for the filing and service of the Notice of appeal, no appeal laid before the Court and the Notice of Appeal is a nullity being void ab initio . Therefore ground 2 is without merit and must fail.

(vi)          In relation to the 3rd ground of appeal, the words “ may within thirty days... give notice to the Registrar of his intention to appeal ” in the context of the legislation was to be construed as mandatory and not directory as contended by the Appellant.

(vii)         The Appellants applied to be entered on the register as proprietors by possession in January 2013 at which time they would not have been in peaceful open and uninterrupted possession without the permission of any person lawfully entitled to such a possession for a period of twenty (20) years and therefore could not claim title to the property by way of prescription. Therefore the Learned Chief Justice was correct in dismissing the appeal. Ground 4 of the Notice of Appeal must also fail.

14.          The first issue which must be considered by this Court is whether the Court has jurisdiction to entertain the hearing of this Appeal, it being alleged the appeal from the Registrar to the Court was not filed within the time stipulated by section 147 of the RLO.

15.          Section 147 provides as follows:

“Any person aggrieved by a decision, direction, Order, determination or award of the Registrar may within thirty (30) days of the decision, direction, order, determination or award, give notice to the Registrar in the prescribed form of his intention to appeal to the Supreme Court against the decision, direction, order, determination or award.”

16.          The appellants content that they lodged their appeals with the Registrar of Lands within 30 days of the decision in accordance with Section 147 of the RLO albeit that it was sent by facsimile only.

17.          Counsel for the Registrar suggests that the appeal was not lodged in time because the hard copies of the appeal were not served on the registrar until August. It is accepted that the faxed Notice of Intention to Appeal by the parties was received on 28 March 2013.

18.          It is suggested that the Registrar did not complain of late service or gave no objection to the service or gave no objection to the service of the appeal by fax and that the Appellants first notice of this objection came in the Respondents brief statement of Question in Issue filed on December 13, 2013, just weeks before the hearing of the matter.

19.          In relation to “Notice” under the RLO, section 151 states as follows:

“A notice under this ordinance shall be deemed to have been served on or given to any person

a)            If served on him personally; or

b)            If served on an attorney holding a power of attorney where under such attorney is authorized to accept such service; or

c)             If sent be registered post to him at his last known postal address in the Islands or elsewhere and a receipt purporting to have been signed by him has been received in return; or

d)            If service cannot be effected in one of the above mentioned ways, by displaying it in a prominent place on the land affected and by publishing it in three consecutive issues of the Gazette.”

The wide scope of the provisions of section 151(d), in my opinion is indicative of the importance which is attached to the service of notice under the Ordinance.

20.          Further on any reach of Section 151 of the RLO, the Appellants contend that the section does not apply to persons giving any notice to the Registrar but that it relates to notices between parties such as a mortgagee giving notice to a debtor under section 72 of the Ordinance. For the reasons set out below, I do not agree with this contention.

21.          The appeal provisions under the RLO contains part XI of the Ordinance Section 146 deals with power of the Registrar of Lands to state a case for the opinion of the Supreme Court and it is not relevant to this appeal.

22.          Section 147 deals with appeals and is provided as follows:

147. (1) The Permanent Secretary, Finance of any person aggrieved by a decision, direction, order, determination or award of the registrar may, within thirty days of the decision, direction, order, determination or award, give notice to the Registrar in the prescribed form of his intention to appeal to the Supreme Court against the decision, direction, order, determination or award.

(2) On receipt of a notice of appeal, the Registrar shall prepare and send to the Court and to the appellant, and to any other person appearing to him from the register to be affected by the appeal, a brief statement of the question in issue.

(3) On the hearing of the appeal, the appellant and the Registrar and any other person who, in the opinion of the Court, is affected by the appeal may, subject to any rules of the Court , appear and be heard in person or by a legal practitioner.

(4) The Court may make such order on the appeal as the circumstances may require, and every such order shall be given effect to by the Registrar.

(5) The costs of the appeal shall be in the discretion of the Court.

23.          The appellants, as aggrieved persons, were entitled to appeal the decision or determination of the Deputy Registrar of Lands which was given on 28 February 2013. The Deputy Registrar made the decision or determination by way of letter of that date which was sent to Karram and Missick, Attorneys-at-Law for the Appellants. It was indicated that the first and Second Appellant had not established their claim for ownership as required by section 135 of the RLO. The reason for the decision are not relevant at this stage.

24.          As stated previously, on 28 March 2013, a Notice of intention to appeal was sent by way of facsimile to the Registrar giving notice of the appellants’ intention to appeal.

25.          Issue is taken with whether the purported service by way of facsimile satisfies the provisions of section 151 (a), the question arises whether such service was adequate notice to the Registrar of the Appellants intent to appeal. No issue is taken that the Notice did not comply with the form of intention to appeal as set out in the Rules contained in Schedule 3 R.L. 21.

26.          The actual notice of intention was not served on the Registrar until 28 august 2013, five months after the notice of intention to appeal had been sent by facsimile.

27.          When the matter came on for hearing before Her Ladyship the Chief Justice, the Chief Justice ordered that the Appellant’s appeal be dismissed on the ground that the appellants’ notice of intention to appeal was given to the Registrar after the period for filing the notice of intention to appeal had elapsed. The Chief Justice further held that the Supreme Court had no jurisdiction under the RLO to extend the time for appealing.

28.          The appellants have sought to appeal to the Court of Appeal. As stated previously, counsel for the Registrar of Lands and the Attorney General had taken the preliminary point that the Court of appeal had no jurisdiction to entertain the appeal from the Order of the Chief Justice on the grounds that the sending of the notice of intention to appeal to the Registrar of Lands by way of facsimile did not comply with the provisions of section 151 of the RLO which deals with the service of Notices under the Ordinances. Section 151 is set out above.

29.          It is not disputed that the Appellants sent notice of their intention to appeal by way of facsimile to the Registrar of Lands on 28 May 2013. The sole issue on this point is whether this facsimile was proper notice of intention under the Ordinance.

30.          In order to determine this issue it is necessary to examine the meaning and effect of the provisions of section 147 and 151 of the RLO.

31.          By section 147(1), the Legislature gave the right of appeal to the Permanent Secretary, Finance or any person aggrieved by the decision or determination. A person to whom the right of appeal is given is required to give within thirty days to the Registrar of Lands, in the prescribed form, his notice of intention to appeal to the Supreme Court. The prescribed forms required the person giving notice of his intention to appeal to set out the grounds of appeal. In order to comply with the requirements the notice of intention of appeal to the Supreme Court must therefore be in writing and signed by an appellant. It is of significance that in section 148(1), it is stated that Court shall not affect a disposition for valuable consideration made in good faith and registered before delivery of the notice to appeal. The notice of appeal once received by the Registrar would prevent a disposition of the Land even if made for valuable consideration and in good time and any disposition shall be subject to any such notice.

32.          The effect of section 147(1) when read with section 148, is to give protection to a person who purchased the property for valuable consideration in good faith and protect others from purchasing when an appeal is pending.

33.          Section 147(2) provided that “on receipt of a notice of appeal,” the Registrar is required to prepare and send to the Supreme Court and to any other persons appearing to the Registrar to be affected by the appeal a brief statement of the issue in question.

34.          Section 147 does not provide in what manner the notice of intention is to be given to the Registrar. The notice has to be given within 30 days and must be in writing. The section does not provide for the manner of service of the notice. In my opinion, the purpose of the notice is to bring to the attention of the Registrar that an appeal has been lodged.

35.          In Anderton v. Choyd County Council [2002] 3 All ER 813 Mummery LJ dealing with the deeming provisions in a statue observed at paragraph 27

In the case of a deeming provision it is important to identify and take account of its purpose. In IRC v. Metrolands (Property Finance) Ltd [1981] 2 All ER 166 at 180 - 182, [1981] WLR 637 at 646, Nourse J reviewed the leading authorities, including East End Dwellings Co. Ltd v. Finsbury BC [1951] 2 All ER 587 at 598 - 599, [1952] AC 109 at 132 -133, and summarized their effect:

When considering the extent to which a deeming provision should be applied, the court is entitled and bound to ascertain for what purposes and between what persons the section is to be resorted to. It will not always be clear what those purposes are. If the application of the provision would lead to an unjust, anomalous or absurd result, then, unless its application would clearly be within the purposes of the section it should not be applied. If, on the other hand. Its application would not lead to any such result then, unless that would be clearly be outside the purposes of the section, it should be applied.

36.          The purpose of Service of notice of intent to appeal is to bring to the attention of the Registrar that the Registrar’s decision is under appeal. On receipt of the notice of intention to appeal, the Registrar is required to take certain steps - section 147(2). Protection is afforded to the purchaser of property who purchases the property in good faith, and who registered the property before the notice of intention to appeal is received - see section 148 (1) of the RLO.

37.          Notice is required to be given under other provisions of the RLO e.g under section 56, lessor has to serve notice of forfeiture on lessor; under section 114(4), interested person is required to give notice to the Registrar that a power of attorney which has been registered under section 114(1) has been revoked by death, bankruptcy or disability etc; under section 129 (2)(a), service of notice on caution at the request of persons interested; by 2(a) cautioner objecting to removal of caution shall notify Registrar in writing of his objection; under section 133(1) Registrar is required to give notice in writing to proprietor of entry of restriction; under section 137(2) Registrar is required to give notice of an application by any person for registration to any person who in his opinion is affected by the application. I have referred to these provisions to indicate the importance that the date of service of the notice must be certain and hence the reason in my view for deeming provisions set out in section 151.

38.          When read in this light the deeming provisions of section 151 of the RLO do not lead to an unjust, anomalous or absurd result. On the contrary, it is intended to deal with situations such as this, and to prevent any uncertainty as to the date of service of notice of intention to appeal. If the deemed method of service is used, uncertainty as to the date of service is thereby removed.

39.          If other methods of service are to apply having regard to modem methods available such as by electronic method, it would need the appropriate legislative intervention. I need to say no more on this issue.

40.          For this reason the appeal is dismissed and the order of the Chief Justice is affirmed.

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Mottley J.A

______________________

Zacca, P

_______________________

Forte, J.A