ANTIGUA AND BARBUDA
IN THE COURT OF APPEAL
CIVIL APPEAL NO. 15 of 2005
BETWEEN:
EUNICE EDWARDS
Appellant
and
1. KEITH EDWARDS
2. NJARDAS AS
Respondents
Before:
The Hon. Mr. Brian Alleyne S.C. Chief Justice [Ag]
The Hon. Mr. Michael Gordon, QC Justice of Appeal
The Hon Mr. Hugh Rawlins Justice of Appeal
Appearances:
Sir Fenton Ramsahoy SC with Lionel Greenidge for the Appellant

Ms. Eleanor Clarke-Solomon for the 1st Respondent

2007: March 14;

JUDGMENT
1. GORDON, J.A.: When we heard this matter, we gave an oral judgment in court. We
have since been asked to reduce our reasons for our decision to writing. This I now
seek to do.
2. The appellant and the first respondent were man and wife1. During the course of their
marriage they acquired various properties including a holding of some 832 acres of
land at Five Islands, Antigua (hereinafter referred to as “the Property”) said to be
valued in excess of US$ 40,000,000.00. They held the Property as joint proprietors.
Mr. and Mrs. Edwards divorced. After the divorce there was a partition proceeding
initiated by the Respondent. The parties arrived at a consent order which dealt with
most of their substantial holdings. Curiously, the consent order did not address the
Property. It should also be mentioned that the former matrimonial home was built on
the Property. As the learned trial judge said in her judgment: “The reason for that as
claimed by Mrs. Edwards in paragraph 8 of her affidavit of 3rd March was that having
regard to the physical characteristics of the land it would have been difficult to
determine the most equitable way of dividing the land. This beggars the imagination”2
3. The Respondent was indebted to Njardar AS, the 2nd respondent (hereafter referred to
as “Njardar”) in a sum of some $36,547.98 for which debt Njardar obtained a judgment
in default of acknowledgment of service against the Respondent.
4. The judgment remained largely unsatisfied and Njardar took out a judgment summons
in October 2003. The Respondent was ordered to make payments by instalments and
in default to be committed to prison for 14 days. The Respondent defaulted and in
December 2003 Njardar applied to have him committed. The committal proceedings
were compromised by both parties, who were represented by counsel, agreeing to a
negotiated settlement and as a result a consent order was entered in the proceedings.
By that order, the Respondent agreed to give to Njardar a charge over a half share of
the property and the order provided that his (the Respondent’s) half share be sold to
satisfy the debt.
5. The appellant applied to intervene and permission was granted. The burden of the
opposition of the appellant was that the court had no jurisdiction to make the consent
1 As the 2nd respondent took no part in this appeal, the term Respondent will be used to designate the 1st
respondent
2 Judgment, Paragraph 2
order nor to order the sale of the Property as the same was joint property and the joint
ownership could not be severed unilaterally by the Respondent acting on his own. The
matter came on for hearing and the learned trial judge made an order which in part
read:
“It is declared that the consent order in Suit 230 of 2003 Njdar AS made on 28th
January and entered on 5th February, 2005 taken in conjunction with Mrs Edwards’
refusal to consent to a severance by joining to file the relevant instrument
prescribed by the Registered Land Act has the effect of severing the beneficial
joint tenancy in the Property registered as Parcels 1,2 and 3 of Block 1290A in
Five Islands Registration section.”
6. The appellant has appealed that judgment of the trial judge. Antigua and Barbuda, like
many of the present and former territories which form part of the British Empire and
British Commonwealth has a Registered Land Act, Cap 374 of the Laws of Antigua
and Barbuda (hereafter referred to as RLA). Section 3 (1) of RLA provides: “Except as
otherwise provided in this Act, no other law and no practice or procedure relating to
land shall apply to registered land under this Act so far as it is inconsistent with this
Act”
7. Section 101 of RLA provides as follows:
a. “101 (1) Where the land, lease or charge is owned jointly, no proprietor is entitled
to any separate share in the land, and consequently-
(a) dispositions may be made only by all the joint proprietors; and
(b) on the death of a joint proprietor, his interest shall vest in the
surviving proprietor or the surviving proprietors jointly.
(2) For the avoidance of doubt it is hereby declared that –
(a) ….
(b) a joint proprietor of any land, lease or charge may transfer his interest
therein to all the other proprietors.
(3) Joint proprietors, not being trustees, may execute an instrument in the
prescribed form signifying that they agree to sever the joint proprietorship, and the
severance shall be completed by the registration of the joint proprietors as
proprietors in common in equal shares and by filing the instrument.”
8. Sections 102 and 103 of LRA set forth the characteristics of proprietorship in common
and the rights of co-owners.
9. The issue which was before the trial judge was, as she characterized it, really one of
statutory interpretation. In the scheme of the trial judge’s interpretation one further
section of LRA is set forth for ease of reference and it is section 161. Section 161
reads:
“161. Any matter not provided for in this Act or in any other written law in relation
to land, leases and charges registered under this Act and interests therein shall be
decided in accordance with the principles of justice, equity and good conscience.”
10. The learned trial judge made reference, in her judgment, to the case of Mums
Incorporated et al v Cayman Capital Trust et al3, a case decided by the Court of
Appeal of the Cayman Islands. In that case, the very same issue of involuntary
separation of a joint interest arose. The appellants applied for an order for the sale of
the second respondent’s interest in a jointly owned property (the matrimonial home)
based on a judgment they had obtained against the second respondent. The wife of
the second respondent was registered as a joint proprietor. The Grand Court of the
Cayman Islands held that they had no power to grant an order for the sale of the
second respondent’s interest save in compliance with section 100 of the Registered
Land Law (Revised). The provisions of the Registered Land Law (Revised) of the
Cayman Islands are in pari materia with the LRA. The appellants appealed to the
Court of Appeal of the Cayman islands who upheld the finding of the trial judge. The
learned trial judge in this case, very correctly, in my view, held that an authority from
the Court of Appeal in the Cayman Islands was in no sense binding on her and was at
best only persuasive. Having endorsed the trial judge’s characterization of the
3 (2000) CILR 131
relationship between the judgments from the Cayman Islands and judgments of our
own courts, however, I find that I must prefer the reasoning of Telford Georges JA in
the Mums Incorporated case to that of the learned trial judge.
11. What the learned trial judge sought to do, in contra-distinction to Georges JA, was to
provide a ‘filler’ for what she saw as a lacuna in the law. At paragraphs 32 and 33 of
her judgment she says the following:
“Section 101(1) reiterates the common law position that a joint tenant does not
have a separate interest in the land. It goes on to state that “dispositions” shall
only be made by all the joint proprietors. What then is a disposition? It is defined
as meaning “any act inter vivos by a proprietor whereby his rights in or over his
land, lease or charge are affected, but does not include and agreement to transfer,
lease or charge. See, Section 2. And undoubtedly in the context of section 101 a
disposition can only relate to a disposition of the whole of the property by all the
joint proprietors as no one proprietor has a separate share in the land.
“However, what provisions has the Act made for severance in circumstances
where the joint proprietors no long desire to hold the property as joint tenants?
Surprisingly, the answer is none, unlike the situation with tenants in common
where it provides by section 102(2) that no proprietor in common shall
unreasonably withhold consent to a disposition by another common proprietor to a
stranger. And under section 103(1) anyone proprietor in common may apply to
the Registrar for partition. I note there is no reference to the Partition Act.
Parliament must be presumed to know that the Partition Act applies to joint tenants
as well as tenants in common and if it wished to preclude applications under the
Partition Act by a joint tenant where a fellow joint tenant did not consent to a
disposition or severance it had the opportunity to say so expressly. By not doing
so and by not making any provision for situations where joint tenants failed to
agree to file the prescribed instrument under section 101(3) it seemingly left a
serious lacuna in the law.”
12. The learned trial judge then seeks to use section 161 of LRA as the ‘filler’ for the
lacuna. She states at paragraphs 34 and 35 the following:
However, to my mind on closer consideration Parliament did not leave the joint
tenant without a remedy. By section 161 Parliament recognized implicitly that it
might have omitted to deal with all matters touching and concerning registered
land and specifically addressed this by providing that such matters be resolved as
stated in section 161. What better formula could have been devised for
addressing omissions.
Clearly, as I have found, Parliament omitted and I do not find that it did so
intentionally, to consider the situation where joint tenants fail to agree on
disposition or severance and I must therefore go on to resolve the issue having
regard to the principles mandated by section 161. This brings one to a
consideration of the facts of this case.”
13. Georges JA in the Mums Incorporated case deals with the Cayman equivalent of
section 161 in this way:4
“The long title of the RLL [the Registered Land Law of Cayman Islands] reads: “A
Law to make provision for the registration of land and for dealing in land so
registered and for purposes connected therewith.” Section 3 states: “Except as
otherwise provided in this Law, no other law and no practice or procedure relating
to land shall apply to land registered under this law so far as it is in consistent with
this Law.”[Emphasis supplied.] There is a proviso which is not relevant to the
circumstances under discussion. Section 164 provides:
‘Any matter not provided for in this Law or in any other Law in relation to
land, leases and charges registered under this Law and interests therein
shall be decided in accordance with the principles of justice, equity and
good conscience’
It would appear from these provisions that the RLL is intended to cover
completely the matters pertaining to the registration of land and dealings in
registered land with which it purports to deal. While concepts of English land law
both before and after 1925 may provide a useful backdrop against which to view
the RLL, they should not be permitted to intrude upon its interpretation.
Section 37(1) of the RLL provides:
‘No land, lease or charge registered under this Law shall be capable of
being disposed of except in accordance with this Law and every attempt
to dispose of such land, lease or charge otherwise that in accordance with
this Law shall be ineffectual to create, extinguish, transfer, vary or affect
any estate, right or interest in the land, lease or charges.”
In the definitions section, s.2, “disposition” is defined as meaning “any act inter
vivos by a proprietor whereby his rights in or over his land, lease or charge are
affected, but does not include any agreement to transfer, lease or charge.”
These sections were considered by Henry, J. A. in Paradise Manor Ltd. v. Bank of
Nova Scotia (1) and he concluded (1984-85 CILR at 480):
‘By applying the definition of “disposition” to s37, the meaning that
emerges is that no right of a proprietor in or over his land, lease or charge
4 Ibid Page 134 lines 1 – 36
registered under the Law shall be capable of being affected [except] in
accordance with the Law and the system of registration established by it.”
I accept this dictum as accurately expressing the position”
14. We found that the reasoning of Georges JA led to a conclusion with which we agreed.
In those circumstances we allowed the appeal with costs to the appellant.