Supreme Court
Action No. 239 of 1981
18th November, 1981.
Alcantara, J., OBE

Mr. W.P. Elrington for the Applicant (SERAFINA VEGA)

Real Property - General Registry Ordinance, Cap. 218 - effect of non-recording of an executed deed - Law of Property - Ordinance, Cap. 193 - Declaration of title by the Court by reason of sole continuous undisturbed possession and user - Standard of proof of a sufficient degree of sole possession and user - Applicability of S.42 of Law Property Ordinance where there is evidence of title already existing in the Petitioner/Claimant.

J U D G M E N T

This is a Petition under Section 42 of the Law of Property Ordinance, Cap. 193, for a declaration of title by the Court in favour of the Petitioner.

Section 42(1) of the Ordinance reads:

"Title to the fee simple in any land, or to an easement, right or privilege in or over any land, including land belonging to the Crown, may be acquired by continuous and undisturbed possession of that land for thirty years if such possession is established to the satisfaction of the Supreme Court which may issue a declaration of title in respect of the said land, easement, right or privilege in favour of the person who has had such possession."

The evidence adduced on behalf of the Petitioner is a short affidavit in support of the Petition and verifying the same. The Petition states that the Petitioner entered into possession of the land on the 5th day of June 1947 by virtue of an Indenture dated same date whereby the land was sold to her by one Aurelio Escalante. The said Indenture was never recorded under the General Registry Ordinance, Cap. 218. The Petition further states that the Petitioner has been in continuous and undisturbed possession of the said land for over thirty years and that she has been paying the Land Tax since 1947. On that the Petitioner is claiming a Declaration of Title.

Three points arise for my consideration.

First, is the Indenture of the 5th day of June 1947 admissible in evidence to prove or support continuous and undisturbed possession. There is no doubt that it cannot prove title. Section 71 of the General Registry Ordinance, Cap. 218, is in these terms:

"No deed executed after the fourteenth day of December, one thousand eight hundred and eighty-eight, shall have any validity or effect unless it is lodged for record in the office of the Registrar, within one month after the date thereof if executed within this colony, and within three months after the date thereof if executed out of this colony."

However, the Court of Appeal (Civil appeal No. 6 of 1980) has decided that an unrecorded deed can still be binding, and therefore admissible, in certain circumstances in connection with frauds. They did not direct their minds to the issue now before me. I am convinced that an unrecorded deed is not admissible in a case such as this to prove possession and indirectly title, and I so hold.

Secondly, was sufficient evidence adduced to satisfy the Court that the Petitioner has been in continuous and undisturbed possession for over thirty years. The answer is no. The only evidence before the Court is the affidavit evidence of the Petitioner saying she has been in possession for over 30 years and that she has paid Land Tax. The burden of proof is somewhat higher. I derive some assistance from the Privy Council case of West Bank Estates Ltd. v S.C. Arthur and Others (1966) 11 W.I.R. The relevant part of the headnote reads as follows:

(ii) that what was a sufficient degree of sole possession and user had to be measured according to the objective standard, related to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants;

(iii) that although what constituted possession, adequate to establish a prescriptive claim might depend upon the physical characteristics of the land such acts as cutting timber and grass from time to time were not sufficient to prove the sole possession which was required, for they were not inconsistent with the enjoyment of the land by the person entitled.

Thirdly, whether the Petitioner has chosen the right remedy to prove her title. There are two decisions of Mr. Justice Malone with which I agree. They are Actions 116 and 118 of 1965.

This is a quotation from Action 116 of 1965:

"The question at issue is therefore whether resort can be had to Section 42 of the Ordinance where there is evidence of title already existing in the applicant? In my view the purpose of Section 42 is to enable a title to be granted by the Court on the ground of continuous and undisturbed possession for the required period where there is no subsisting title in the petitioner."

This is a quotation from Action 118 of 1965:

"Section 42 of the Law of Property Ordinance apply to circumstances where the petitioner having no title seeks to establish one by continuous and undisturbed possession for the required period. That section to my mind therefore cannot meet a case where there is evidence of title."

It is quite true that in those two cases there was a recorded document, but the reasoning is still applicable where there is a document or documents still capable of being recorded or perfected. I direct my mind to the proviso of Section 71 of the General Registry Ordinance.

I accordingly dismiss this Petition.

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