Cook-Bodden v Kirkconnell

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Henry and Kerr, JJ.A.)
• Judgment Date: 25 June 1992
• Court: Court of Appeal (Cayman Islands)
• Date: 25 June 1992

Court of Appeal

(Zacca, P., Henry and Kerr, JJ.A.)

COOK-BODDEN

and

M.I. KIRKCONNELL and M. KIRKCONNELL

E. Grant for the appellant;

P. Lamontagne, Q.C. and C.C. Adams for the respondents.

Cases cited:

(1) Ebanks v. Clarke, 1992–93 CILR 33, dicta of Schofield J. considered.

(2) Ebanks v. Powery, 1980–83 CILR N–7, dicta of Summerfield, C.J. considered.

(3) Juneau v. Gynell, 1984–85 CILR 1, considered.

(4) Lightbourne v. Astwood, Supreme Court of the Turks and CaicosSupreme Court of the Turks and Caicos

Islands, August 20th, 1982, unreported, dicta of Hercules, Ag. J. considered.

(5) Porter v. FrettUNK(1973), 21 W.I.R. 543.

(6) Skelton v. SkeltonUNK(1986), 37 W.I.R. 177, dicta of Robotham, C.J. considered.

(7) Wilson v. Bodden, Grand Ct., Cause No. 195 of 1980, unreported, dicta of Collett, C.J. considered.

(8) Wood v. Wood, Grand Ct., Cause No. 411 of 1980, unreported; on appeal, 1980–83 CILR 281, considered.

Legislation construed:

Land Adjudication Law, 1971 (Law 20 of 1971), s.14: The relevant terms of this section are set out at page 92, lines 31–35.

s.16(1): The relevant terms of this sub-section are set out at page 92, line 37 – page 93, line 9.

s.20: The relevant terms of this section are set out at page 93, lines 12–18.

s.22: The relevant terms of this section are set out at page 93, lines 21–31.

s.23: The relevant terms of this section are set out at page 93, line 35 – page 94, line 22.

Registered Land Law (Revised) (Law 21 of 1971, revised 1976), s.9(1): The relevant terms of this sub-section are set out at page 95, lines 8–11.

s.10: The relevant terms of this section are set out at page 95, lines 13–20.

s.11: The relevant terms of this section are set out at page 95, lines 22–30.

s.140: The relevant terms of this section are set out at page 95, lines 33–38.

s.141:

‘(1) Subject to the provisions of this Law and of any Law relating to the limitation of actions, any person suffering damage by reason of-

. . .

(b) any mistake or omission in the register which cannot be rectified under this Law, other than a mistake or omission in a first registration . . .

shall be entitled to be indemnified. . . .’

Land Law-registration-rectification-rectification of Land Register permitted under Registered Land Law (Revised), s.140(1) only for fraud or mistake after adjudication, e.g. adjudicator”s decision incorrectly entered in Land Register

The appellant brought an action in the Grand Court seeking rectification of the Land Register pursuant to s.140(1) of the Registered Land Law (Revised).

The appellant was appointed in 1979 as the personal representative of the estate of William Eden, succeeding the previous administrator who died in 1925 without completing the administration of the estate. In 1986 he brought the present proceedings against the respondents claiming that land then registered in their names had been first mistakenly registered in 1976 in the names of the personal representatives of the estate of their predecessor pursuant to adjudication proceedings under the provisions of the Land Adjudication Law, 1971. The appellant sought an order for rectification of the Land Register by cancellation of the existing registration and the substitution of himself as administrator of the estate of William Eden as proprietor.

The Grand Court (Harre, J.) determined as a preliminary issue the question of whether it had the power to order the rectification of the Land Register when such rectification was sought under the provisions of s.140(1) of the Registered Land Law (Revised) on the ground of mistake alleged to have arisen during the course of the adjudication process under the Land Adjudication Law, 1971 and subsequently reflected in the first registration in the Land Register. It held that it had no power to grant rectification in these circumstances as the adjudication process was final and, under s.140(1), rectification of a first registration was available only in circumstances where a mistake, fraud or omission had occurred subsequent to the adjudication. The proceedings are noted at 1990–91 CILR N–17.

On appeal, the appellant submitted that the court had erred in holding that it could not in the circumstances order rectification of the register because (a) it was clear from the wording of s.140 that the section contemplated circumstances in which a first rectification could be rectified and that it was intended to provide an optional remedy for correcting a mistake made by the adjudicator; and (b) the effect of placing a restricted interpretation on the section that the adjudication

process was final would be to permit the law to be used as an instrument of fraud in certain cases and such an interpretation ought not in principle to be adopted.

The respondents submitted in reply that (a) the aim of the Land Adjudication Law, 1971, in accordance with the Memorandum of Objects and Reasons for the Bill for the Law and its specific provisions, was to determine the ownership of land and to assure finality of the adjudication process whereby the resultant registration would confer absolute ownership; and (b) the phrase ‘subject to Land Adjudication Law, 1971’ in s.140 with respect to the court”s power to order rectification of a first registration was intended to restrict that power in accordance with the provisions of the 1971 law but to allow for rectification of first registrations which had not arisen out of adjudications, e.g. following sub-divisions.

Held, dismissing the appeal:

Since it was expressly stated in the Memorandum of Objects and Reasons for the Bill for the Land Adjudication Law, 1971 that its purpose was to effect titles to land that were ‘certain and guaranteed’ and since the Registered Land Law (Revised) was expressed in s.140(1) to be subject to the 1971 Law, the court”s power to rectify a first registration would clearly not be a general one but subject to the procedures set out in the 1971 Law. Section 140(1), therefore, did not permit rectification if that meant re-opening the adjudication process or challenging the adjudicator”s findings but was intended only to confer the power to rectify in a case of fraud or mistake which occurred after the adjudication process, such as where a decision might have been incorrectly entered in the final adjudication record or in the Land Register. This conclusion was reinforced by s.141(1) which provided for the indemnity of persons suffering damage by reason of ‘any mistake or omission in the register which cannot be rectified . . . other than a mistake or omission in a first registration.’ Since the mistake in the present case was alleged to have occurred during the course of the adjudication process and there was no evidence that the relevant persons had been unaware of that process, rectification under s.140(1) was not available to the appellant and his appeal would be dismissed (per Zacca, P. and Henry, J.A., page 105, line 13 – page 106, line 7; page 110, line 28 – page 111, line 2; page 111, line 17 – page 112, line 2; Kerr, J.A. dissenting on the interpretation of s.140(1), page 115, lines 20–24;page 124, lines 25–39;page 126, line 4 – page 127, line 1; page 127, lines 10–29).

ZACCA, P.: By originating summons the appellant sought
rectification of the Land Register under s.140(1) of the Regis-
40	tered Land Law (Revised) on the ground of mistake. The mistake
was alleged to have arisen during the course of the process under

the Land Adjudication Law, 1971 and reflected in a first
registration.
It was agreed that the question of whether the court had power
to order rectification of the register in such circumstances should
5	be determined as a preliminary issue. The learned trial judge held
that the court had no power to order rectification of the register in
the circumstances of this case and the action was dismissed. From
this order the appellant, who was the plaintiff in the action, now
appeals.
10	On February 24th, 1976, land known as Little Cayman West,
Block 82A, Parcel 7 was entered as a first registration in the name
of the personal representatives of the estate of Alvernie
Kirkconnell. It now stands registered under the names of the
respondents, Moses and Mabry Kirkconnell. The appellant was
15	substituted as personal representative of the estate of William
Eden on November 22nd, 1979. He replaced Charles A. Eden
who had died in 1925 without completing the administration of
the estate. This action was commenced by originating summons
in 1986. An order was made on a summons for directions on
20	September 3rd, 1991 setting down the action for trial on October
21st, 1991. This action was therefore commenced some 10 years
after the first registration.
In 1971, the Land Adjudication Law, 1971 together with its
companion legislation, the Registered Land Law, were passed.
25	The purpose and intent of the legislation was to enter on a land
register all land in the Cayman Islands which had been
adjudicated upon. It will be necessary to look at some of the
provisions of the Land Adjudication Law, 1971 which led to land
being placed on the register.
30	Section 14 states:
‘The Records Officer shall consider all claims to any
interest in land and after such investigation as he considers
necessary shall prepare in accordance with the provisions of
section 18 a record in respect of every parcel of land shown
35	on the demarcation map.’
Section 16(1) states:
‘In preparing the adjudication record-
(a) if the Records Officer is satisfied that a person-
(i) is in open and peaceful possession of a parcel and
40	has been in such possession by himself or by his
predecessors in title for an uninterrupted period

of twelve years or more; or

(ii) has a good

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