EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
COMMONWEALTH OF DOMINICA
CASTAWAYS DEVELOPMENT LTD
CASTAWAYS HOTEL LTD.
Before: The Hon. Justice Brian Cottle
Mr. Michael Bruney for Claimant
Mr. Gerald Burton for Defendant
[2009: 1st 2nd October; 13th November]
 COTILE J: By claim 590 of 1995 Castaways Development Ltd.
(Development) sought to recover 2.272 acres of land in Mero in the
Commonwealth of Dominica. That land was included on the Certificate of Title
of Development but was being occupied by Castaways Hotel Ltd. (Hotel).
 Development was owned and controlled by one Milan Cjevic, while Hotel was
owned and controlled by William Harris.
Development sought the following relief:
1. an order that the defendants or either of them do forthwith pull down
and remove afence built by the 1st
defendant, or his servants or
agents on the plaintiffs land at Mero in the parish of St. Joseph.
2. Damages for trespass
3. Possession of the land described in the Schedule hereto
4. Mesne profits at a rate to be determined by the Honorable Court from
May 14. 1987 until possession is given up
5. An injunction to restrain the 1st and 2nd defendants whether by
themselves or by their servants or agents or otherwise howsoever
from remaining on or in possession of the plaintiffs said land.
6. further or other relief
Aportion of land known as Beach Lot Nos. B, C, &0, apart of Mero Estate in
the parish of S1. Joseph containing 2.72 acres and bounded as follows:
North: by a public road and Lot A(Castaways Developments
North- East by a public road and Lot A(Castaways Developments
South- West by the sea;
East by the public road
 While this claim was pending, by suit 278 of 1996, Hotel sued Development
for specific performance of an agreement to transfer to Hotel “all lands
belonging to Developments west of the highway, south of the Mero River 54,
239 sq. ft plus lots 10, 11,325 and 329. Despite having been filed after suit
590 of 1995, this case was tried first and judgment was given for Hotel. The
learned trial Judge Enfield J. gave an oral decision which was transcribed by
the court stenographer. The record reveals the learned judge as saying
“I therefore propose to grant specific performance of the agreement which is
Exhibit A1. The form of the specific orders should be brought in by counsel at
aconvenient time which I shall fix in a few minutes for the consideration of the
Einfeld J. went on to say at the end of his oral judgment, “the matter stands
over for ‘Final orders to 30’ clock on Tuesday 2nd March.II
[4} The judgment of Einfeld J was delivered on 24th February 1999. There is no
indication that counsel for Hotel, who would have had carriage of the order,
submitted any draft of the specific order as the judge had indicated. There is
also no indication as to what, if anything happened on Tuesday 2nd March
On 24th February 2000 the following order was filed:
UPON HEARING aWrit of Summons and Statement of Claim on the 10th
of July, 1996, and the Defense and Counter-Claim.
UPON HEARING Mr. Anthony W. Astaphan Counsel for the Plaintiff and, Mr.
Michael Bruney, Counsel for the Defendants.
AND UPON HEARING the evidence on behalf of the Plaintiffs and
THIS COURT DOTH ORDER that the agreement between the Plaintiff and
the Defendants mentioned in the Statement of Claim and entered into
evidence as “A. 1” in respect of “all land belonging to Castaways Development
Limited, west of the highway, south of Mero river, 54, 239 sq ft, plus lots 10,
11, 325 and 329 “be specifically performed and carried into execution by the
executors of the first defendant and/or the second defendant.
IT IS FURTHER ORDERED that the executors of the of the First Defendant
and/or the second Defendant do execute proper Memoranda of Transfer of
54, 239 square feet of the said land inclusive of all the land belonging to and
in the name of the second Defendant’s Certificate of Title west of the highway
and south of the Mero river, plus lots 325 and 329, mentioned in the said
agreement to the Plaintiffs within seven days hereof subject to the easement
referred to in the said agreement, the siting and details of such easement to
be agreed between the parties and that the executor of the first Defendant,
an/or the second Defendant do deliver to the Plaintiffs with seven days hereof
acopy of the Certificate of Title to enable the Plaintiffs to obtain Certificates of
Title for the said lands.
AND IN DEFAULT of the execution of any Memoranda of Transfer or delivery
of acopy of the Certificate of Title, IT IS ORDERED that the Plaintiffs are
entitled to obtain a Certificate of Title for the said lands and that the Registrar
of Titles execute Memoranda of Transfer for the said lands upon the written
request of the Plaintiffs and upon the Registrar of Titles being satisfied that
the executors of the first Defendant and/or second Defendant have refused to
execute the Memoranda of Transfer and deliver acopy of the Certificate of
Title as ordered.
AND IT IS FURTHER ORDERED that the Defendanfs Counter Claim be
dismissed and the Defendants pay the Plaintiffs costs on the Claim, and on
the Defendants’ Counter- Claim.
 On the 1st April 2004 the Registrar, at the instance of Hotel and on the basis
of the court order filed on 24th February 2000, issued a Certificate of Title to
Hotel for 3.0150 ecres of land at Mera.
 It is also worth setting out here that on 18th March 1999 in Suit 590 of 1995
Hotel sought to have the statement of claim struck out. The application was
heard on 18th April 2000 and 21
st November 2000 Cenac J. refused the
application and permitted Hotel 7days to file a defense. This they did and that
claim has languished since then with no further activity at all.
 It is against this backdrop that Development have brought the present claim.
1. Adeclaration that the certificate of title No. 1n of 2004 dated the 1st
of April 2004 and registered in Book M 15 Folio 6of the Register of Titles
in respect of 3.0150 acres, part of Castaways Development in the parish
of S1. Joseph and described in the First Schedule hereto of which land the
– named Defendant is the registered proprietor was obtained by the
fraud of the 1st and 2nd
named Defendants and/or issued by the Jrd
named Defendant acting negligently and in breach of his statutory duty
2. An order that the 1st and 2nd named Defendants do forthwith return to the
Registry the duplicate certificate of title to the said land for cancellation
3. An order that the 3r<l named Defendant do forthwith cancel the said
certificate of title and re- issue a certificate of title in the name of the
claimant in respect of a portion of the said land comprising 2.272 acres of
the said land and known as “The Marina” • and which is room specifically
described in the Second Schedule hereto and delineated on the survey
plan annexed hereto drawn by Karol Winski and dated January 16th
and that such certificate of title be issued free from encumbrances.
6 4. An order that the Defendants be ordered to do all the necessary, including
the payment of all associated costs, in order to facilitate the re-issuance of
the said certificate of title on The Malina in the name of the Claimant.
5. An order that the said 1st
named Defendants do pay the Oaimant
damages for misrepresentation including aggravated and exemplary
6. An order that the JIlL named Defendants pay to the Oaimant damages for
negligence and/or breach of statutory duty.
7. Further or other relief
 They argue that Hotel fraudulently induced the Registrar to act by willfully
misrepresenting that they were entitled to 3.0150 acres of land when they
knew that the order of Einfeld J. only gave them 54, 239 sq ft of land. Hotel
also knew that Suit 590 of 1995 concerning 2.272 acres was still pending.
It is common ground that the 3.0150 acres transferred by the Registrar
includes the 2.272 acres claimed by Development in Suit 590 of 1995.
 In their defense to the present claim, Hotel says they acted through
professionals and had no knowledge of any misrepresentation to the
Registrar. They honestly believed that the Order of the court re’Hected the
judgment of Einfeld J.
7 The Evidence
 There was one witness for the claimant. Mr. Jeremiah David is a licensed
land surveyor and holds power of attorney for Development. He swore an
affidavit setting out that the 2.272 acres of land belonged to one Frank Sifer to
whom Developments had agreed to transfer the portion consequent in certain
litigation in Canada in 1969. William Hanns was the director of Development
and knew of the Canadian case and the proposed transfer to Frank Sifer.
Development never complied and completed the transfer of the land to Frank
Sifer who was then the beneficial owner. A few years after the Canadian
proceedings (this would be in the 1970’s) Hotel entered upon this parcel.
Frank Sifer died in 1987. Development agreed with the only beneficiary to his
estate to relinquish all claims to the 2.272 acres in return for valuable
 Suit 590 of 1995 was then brought against Hotel and remains still to be heard.
Mr. David also swore that it was by mere chance that he discovered in 2006
that Hotel had drawn up the final order in suit 278 of 1996 and had perfected
the order. He found this out when he discovered the Memorandum of
Transfer effected by the Registrar, purportedly on the strength of the decision
of Einfeld J. in 1999. Mr. David informed Development and placed a caveat
forbidding dealing with the land on the certificate of title.
 Under cross examination, Mr. David agreed that Hotel has been in occupation
of the disputed land since sometime in the 1970’s certainly for more than
thirty years now. Hotel has erected a fence around the land in question, but
the fence was built less than 30 years ago.
 Linda Harris is the daughter of William Harris. She was Managing Director of
Hotel since 1980 but is now retired. Prior to her father’s death in 1999 he was
the sole shareholder of Hotel. She typed the agreement that was the subject
of claim 278 of 1996. She too swore an affidavit. She was cross examined.
She did not impress the court as a witness on whom reliance can be placed.
She denied recalling details of the 1995 law suit despite the fact of having
represented Hotel in the case and having sworn affidavits with exhibits
 It was her position that suit 278 of 1996 had decided all the issues in dispute
between the parties. That pOSition is difficult to reconcile with the facts. Ms.
Harris was intimately involved in suit 590 of 1995 and suit 278 of 1996. She
knew they concemed different matters. She was at all times represented and
advised by experienced legal practitioners. She would have had the benefit of
their advice at all material times.
 The claimants’ case in the present claim is that the first defendant acting on
behalf of the 2nd
defendant had no honest belief that they were entitled to
3.0150 acres of land. Despite this lack of honest belief they made
representation to the Registrar of Lands causing him to issue them a
Certi’flcate of Title.
 The defendants case is that throughout they acted on the advice of counsel.
They had a reasonable and honest belief that suit 278 of 1996 had
determined all matters of land dispute in their favor.
As an alternative or additional argument, the defendants say that they have
occupied the disputes lands for more than the required period and are now
entitled to the land by prescription.
 The defendants point out that they have filed a defense to suit 590 of 1995
averring the prescription and the claimants have since taken no steps in the
nine years which have gone by.
 Having seen and heard the witnesses and having considered the
documentary evidence I have concluded that the defendants could have had
no honest belief that the judgment of Einfeld J. gave them a right to have
3.0150 acres allotted to them. At the very least the agreement that was to be
specifically performed was unclear. It did not specifically award title to 3.0150
acres of land. It also spoke of four additional lots. It spoke as well of an
easement to be granted over the land to be transferred to Hotel. The final
order makes no attempt to deal with all of these lots or the easement and it is
a’final order prepared and perfected by the claimant’s legal advisors.
 It does not avail the claimants anything to argue that their lawyers acted
without instructions. They were only too happy to accept the benefit – the
certificate of title. Their solicitors must be taken to have been acting on their
 The suggestion that the defendants honestly believed that the judgment of
Einfeld J. gave them the right to have the lands they obtained in the certificate
of title issued by the Registrar, does not stand up to scrutiny for the following
10 1. The terms of the contract to be specifically performed were drafted by
the defendants – indeed it was the first defendant who typed it LIp. She
must have known of the contents.
2. The first defendant knew of the existence of suit 590 of 1995. She
swore to affidavits in that claim. Under cross examination she finally
admitted that when she swore the affidavit in case 590 of 1995 (this
was in 1999) she knew what that case was about.
3. The first defendant was present in court when Enfield J. gave his
decision. She must have known it did not conclude the questions
about the ownership of Frank Sifer’s land.
4. Despite her protestations to the contrary I believe that the first
defendant was very well aware of the decision of Genac J. refusing her
application to strike out claim 590 of 1995.
[211 I thus conclude that the defendants had no honest belief that the judgment of
Einfeld J. entitled them to either the order which they ultimately filed or the
certificate of title they obtained on the basis of that order.
[221 As for the argument that the defendants have acquired a right to the lands in
question by prescription I make no finding.
 There is a procedure laid down in sec’tion 33 of the Title by Registration Act
Chap 36:30 for obtaining tWe by prescription. The defendants have not
followed that procedure.
 The factual conclusions at which I have arrived leave this court in some
difficulty. The court order based, allegedly, on the judgment of Einfeld J. has
not been appealed. It has not been otherwise set aside. It should, in principle
be obeyed and given affect to until or unless it is set aside or overturned. Yet,
I feel great abhorrence at the thought of the courts process being abused to
work manifest injustice.
Halsbury’s laws of England 4th Edition at paragraph 13.53 puts it thus:
Fraud is an extrinsic, collateral act which vitiates the most solemn
proceedings of court of justice. A judgment obtained by fraud or
collusion, even, it seems, a judgment of the House of Lords, may be
treated as a nullity.
 I will treat the order obtained by the present Defendants in the earlier case as
a nUllity. I therefore order that the certificate of title No. 177 of 2004 dated 1st
April 2004 and registered by the defendants in Book M15 Folio 6 be returned
by the defendants to the Registrar of Titles forthwith for cancellation.
 The Registrar of Titles is ordered to re-issue to the claimants the Certificate of
Title in respect of 2.272 acres of land as described in the second schedule to
this amended fixed date claim form filed on 1st April 2008.
 The first and second defendants are ordered to pay all costs associated with
the cancellation and re-issue of the Certificates of Title.
 It was argued that this is a fit case for the award of aggravated and or
exemplary damages. I do not consider that the claimants have led sufficient
evidence to demonstrate that the actions of the defendants were calculated to
earn them a profit in excess of any likely award of damages so as to justify an
award of exemplary damages.
 I decline to make any such award. I consider that the return to the claimants
of the parcel of land in question along with the already awarded
indemnification by the defendants of all associated costs of the land transfer
 The defendants will pay to the claimants the costs of this action on the
prescribed costs basis, in the sum of $14,000.00.
~A’~ Brian Cottle
\ High Court Judge