BRITISH VIRGIN ISLANDS
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Claim No. BVIHCV2007/0008
IN THE MATTER OF SECTIONS 140 &117 OF THE REGISTERED LAND ACT
CAP. 229 OF THE REVISED LAWS OF THE VIRGIN ISLANDS, 1991
IN THE MATTER OF PARCELS 25 & 35 BLOCK 2640B WEST CENTRAL REGISTRATION
SECTION OF THE LAND REGISTER OF THE VIRGIN ISLANDS
IN THE MATTER OF AN APPLICATION FOR REGISTRATION AS PROPRIETOR BY
TRANSMISSION OF PARCELS 25 & 35 FILED AT THE LAND REGISTRY OF THE VIRGIN
ISLANDS AS INSTRUMENT NO. 3009 OF 2006
IN THE MATTER OF A TRANSFER OF PARCELS 25 & 35 FILED AT THE LAND REGISTRY OF
THE VIRGIN ISLANDS AS INSTRUMENT NO. 3019 OF 2006
IN THE MATTER OF A TRANSFER OF PARCEL 25 DATED 9 JANUARY 2007
THE REGISTRAR OF LANDS
-AndGCS DEVELOPMENT LIMITED
Ancillary Claimant/Third Defendant2
Ms. Sheryl Rosan of C.E. Dawson & Co for the Claimants
Mr. Baba Aziz, Principal Crown Counsel, Attorney General’s Chambers for the Second
Defendant, the Registrar of Lands
Mrs. Hazel-Ann Hannaway-Boreland of Harney Westwood & Riegels for the Ancillary
2009: April 21
2009: November 30
Land – Fraudulent Transfer of Land – Rectification of Land register – Bona Fide Purchaser
for Value without Notice – Overriding Interest – Competing Minor Equitable Interests –
Transmission on Grant de Bonis Non Administratus (with Will Annexed) – Reliance on
Official Search Certificate – Effect of Purchaser’s Interest noted in Stay of Registration –
Torrens System Title by Registration and Indefeasibility of Title – Duty of Prudent Purchaser
or Attorney – Personal Representative’s Delay in Administering Estate – Purchaser For
Value Causing or Contributing to Fraud Mistake or Omission – Jurisdiction of Court & Duty
of Government to Indemnify under Registered Land Act in mistake or omission
Ernest Pickering, deceased (“the testator”) appointed his children Mavis Wilkins and Ernest
Pickering Jr. as executors under a 1970 will. Beneficiaries were his ten children, including the
executors and the Claimants. Ernest Pickering Jr. then appointed another beneficiary Frederick
Pickering to act in his place as executor. Between 2000 and 2004 both personal representatives
Frederick Pickering and Mavis Wilkins died intestate without administering the estate, comprising
of parcels 25 and 35 of Block 2640B of West Central Registration Section (“the property”). On 23
October 2006, the First Defendant, Jerry Wilkins (son of Mavis Wilkins) obtained Letters of
Administration over his mother’s estate and applied for registration by transmission. In November
2006, the Registrar of Lands (“the Registrar”) registered the First Defendant as proprietor over the
entire property, rather than over of his mother’s 10
share. That same month, the Claimants
obtained Grant de Bonis Non Administratus (with Will Annexed). On 9
January 2007, the First
Defendant executed a Transfer of Parcel 25 to GCS Development Limited (“GCS”) for the sum of
$125,000. On 15
January 2007, the Claimants discovered that the First Defendant gained
wrongful registration over the entire property and had sold Parcel 25. The Claimants informed the
Registrar. On 16
January 2007, GCS stamped the Transfer and submitted it to the Land Registry.
January 2007, the Claimants obtained a stay of registration over Parcel 25 and issued
proceedings against the First Defendant and the Registrar for fraud and mistake respectively. On
February 2008, GCS applied unsuccessfully for a variation of the 19
January 2007 order. On
October 2007, GCS was added as the Third Defendant/Ancillary Claimant and sought a
declaration and rectification of the register in its favour or indemnifying compensation from the
Registrar. On 15
February 2008, the court, on application by the Registrar, struck out the
indemnity claim by GCS holding that applications under Section 141 of the Registered Land Act
should be submitted to the Registrar, as the court had no jurisdiction where statute appoints a
specific tribunal for enforcement of a right. Default Judgment was entered against the First
Defendant. The remaining issues proceeded for trial. 3
 GCS is a bona fide purchaser of the legal estate for valuable consideration without notice
and as such, takes Parcel 25 free of any prior equitable rights over the Claimants and as
such, the Registrar do forthwith register Parcel 25 in favour of GCS.
 In light of the fraud of the First Defendant and the concession of mistake on the part of the
Second Defendant with respect to Parcel 35, the Registrar do forthwith cancel the
registration by transmission to the First Defendant and substitute the Claimants as
 In respect of the claim of indemnity against the Government, the proper party under the
Crown Proceedings Act is the Attorney General and not the Registrar of Lands.
 HARIPRASHAD-CHARLES J: This is an unfortunate land dispute in which a fraudster
purportedly transferred family land to an alleged bona fide purchaser for value without
notice. The fraudster has since disappeared with the full purchase price leaving the court
to decide which of the defendants is to suffer at the hands of the fraudster. The key issue
which now confronts the court is who is entitled to Parcel 25 of Block 2640B of West
Central Registration Section, Tortola (“Parcel 25”).
 The background facts of this case are not in dispute. Vincent Pickering and Cedric
Pickering (“the Claimants”) are two of the ten lawful children of Ernest Pickering, deceased
(“the testator”). On 22
July 1970, the testator executed a will in which he appointed his
daughter, Mavis Wilkins and his son, Ernest Pickering Jr. to be the executors and trustees
of his will. Ernest Pickering Jr. then appointed Frederick Pickering, another of the lawful
children of the testator, to act in his place. Frederick Pickering died intestate on 1
February 2000 and Mavis Wilkins died intestate on 28
February 2004 without
administering the estate of the testator which comprised of Parcels 25 and 35 of Block
2640B of West Central Registration Section, Tortola (“the property”). In his will, the testator
directed that his trustee convert to money all his real and personal property and the net
proceeds of the sale, subject to the sums that was needed to enable the sale and 4
conversion, be bequeathed to his ten children who included his executors and the
 On 17
August 2005, the Claimants applied for a Grant De Bonis Non Administratus (with
the Will annexed) to the testator’s estate. This was granted on 15
November 2006. On
August 2006, the First Defendant, Jerry Wilkins, one of the lawful children of Mavis
Wilkins, applied for and was granted Letters of Administration to his mother’s estate. On
October 2006, Mr. Wilkins made an application to the Land Registry to be registered
by transmission as proprietor in place of Mavis Wilkins, deceased, of her interest in the
. On 3
November 2006, the Second Defendant, the Registrar of Lands (“the
Registrar”) registered Mr. Wilkins as the personal representative of Mavis Wilkins on the
property when in actual fact, he was entitled to be registered as proprietor in place of his
mother’s one-tenth share of the property. On 6
November 2006, the Registrar also
registered transfers of the property to Mr. Wilkins personally for love and affection.
 On 9
January 2007, Mr. Wilkins executed an Instrument of Transfer transferring Parcel 25
to GCS Development Limited (“GCS”) in full consideration for which GCS paid to him the
sum of US$125,000. The Instrument of Transfer was duly stamped by the Inland Revenue
Department upon payment of US$5,800 in stamp duty by GCS. On 16
January, 2007, the
Instrument of Transfer was submitted to the Registrar for registration.
 On 15
January 2007, the Claimants discovered that Mr. Wilkins had caused himself to be
registered as the proprietor of the property and had transferred Parcel 25 to GCS. They
brought the matter to the attention of the Registrar the same day.
 On 19
January 2007, the Claimants applied, ex parte, and were granted, among other
things, an Order for the stay of registration of Parcel 25.
 By a Fixed Date Claim Form issued on 2
February 2007 and a Re-Amended Statement
of Claim filed on 22
See paragraph 10 of the affidavit of Cecil Dawson in support of the application.
February 2007, the Claimants instituted these proceedings against
Mr. Wilkins and the Registrar alleging fraud against Mr. Wilkins and mistake on the part of 5
the Registrar in registering Mr. Wilkins as proprietor of the property. The Claimants seek,
among other things, an order that the land register relating to the property be rectified by
cancelling the registration by transmission of Mr. Wilkins and substituting it with the
registration by transmission of the Claimants. They also seek an order for GCS to be
compensated by the Registrar, or alternatively, that they be compensated by the Registrar
in the amount of the market value of the property and compensation for the loss suffered.
 On 7
February 2007, GCS applied for a variation of the Order of the Court dated 19
January 2007 to remove the stay and for the Registrar to register the transfer of Parcel 25
to GCS forthwith. GCS asserts that it is a bona fide purchaser for value without notice and
that it is entitled to be registered as proprietor of Parcel 25 as against the Claimants. It
asserts that at the time of the transfer on 9
January 2007, it had no knowledge of any
dispute or claim against Mr. Wilkins’ title and did not know of the claim until about 26
 In a written judgment delivered on 20
, the Court ordered, among other things,
a continuation of the Order which was initially granted on 19 January 2007 inhibiting the
registration of the transfer of Parcel 25 until determination of this claim. The Court also
ordered an expedited hearing.
Significant events since delivery of judgment
 On 8
October 2007, leave was granted to add GCS as the Third Defendant/Ancillary
Claimant in this matter. GCS then claimed, among other things, for a declaration that the
transfer on 9
January 2007 is valid in that it is an innocent purchaser for value with no
notice of any defect in Mr. Wilkins’ title.
 On 7
December 2007, the Registrar issued a strike out application against GCS to the
effect that the High Court has no jurisdiction to hear the matter having regard to the
provisions of the Registered Land Act
BVIHCV2007/0008 – (1) Vincent Pickering (2) Cedric Pickering v (1) Jerry Wilkins (2) The Registrar of
Lands (3) GCS Developments Limited –unreported- Judgment delivered on 20
(“the Act”) for recovering an indemnity from the
Cap. 229 of the Laws of the Virgin Islands, 1997.6
government. On 15
February 2008, Joseph-Olivetti J. struck out a claim brought by GCS
in so far as it sought an indemnity from the Registrar.
The effect of the Default Judgment
 As mentioned aforesaid, on 8
October 2007, default judgment was given against Mr.
Wilkins for fraud, there being no acknowledgement of service or filing of a defence by Mr.
Wilkins. But as Principal Crown Counsel, Mr. Aziz correctly pointed out, the default
judgment did not expressly indicate that the relief sought in the Fixed Date Claim Form for
the rectification of the register had been granted. This ought to have been done on the
date that the default judgment was entered. Needless to say, such a procedural error is
remediable under CPR 26.9.
 Further, at the trial of this matter, Mr. Aziz submitted that the Registrar, as a neutral
stakeholder, does not intend to contest that the Claimants are entitled to rectification of the
land register and that the Registrar would abide by any Order of rectification pursuant to
section 140(1) of Act. In essence, that section confers jurisdiction on the High Court to
rectify the register in instances of entries or omissions made by fraud or mistake.
Additionally, Mr. Aziz conceded that the Registrar made a mistake in the registration
process. This was also confirmed by Mrs. Ingrid Moses-Scatliffe, Chief Registrar of Lands
in her oral testimony when she stated under cross-examination that Mr. Wilkins should not
have been registered as the proprietor of Parcels 25 and 35.
 Based on the fore-going, the Court will order that the proprietorship section of the Land
register relating to Parcel 35 be rectified by the cancellation of the registration as proprietor
by transmission of Mr. Wilkins and substituting by the registration as proprietors by
transmission of the Claimants to Parcel 35. With respect to Parcel 25, the Court should
make a similar order unless GCS falls within the purview of the exceptions created
pursuant to section 140(2) of the Act. The subsection provides that the register cannot be
rectified so as to affect the title of a proprietor who is in possession unless such proprietor
BVIHCV2007/0008 – (1) Vincent Pickering (2) Cedric Pickering v (1) Jerry Wilkins (2) The Registrar of
Lands (3) GCS Developments Limited –unreported- Judgment delivered on 15
February 2008. 7
either had knowledge of the omission, fraud or mistake or caused such omission, fraud or
mistake or substantially contributed to it by his act, neglect or default. “Proprietor” in the
Act means the person registered under the Act as the owner of land or a lease or a
 The evidence in this action is not voluminous. The Claimants called Mr. Cedric Pickering
as their sole witness. He testified that he has been living in Brooklyn, New York since
1973. He is one of the lawful children of Ernest Pickering and one of the beneficiaries
under his father’s will. On 15
January 2007, he and the other claimant, Mr. Vincent
Pickering discovered that Mr. Wilkins had caused himself to be registered as the proprietor
of Parcels 25 and 35 and had perpetrated a fraud against them by transferring Parcel 25 to
GCS for $125,000. He said that the fraud was brought to the attention of the Registrar on
the said day and GCS, the following day. According to him, the family has strong
sentimental attachment to Parcel 25. Under cross-examination, he stated that he has not
done a valuation for the property but he was going to sell it for $225,000 because of its
location and sentimental value.
 Ms. Sheila George, an attorney-at-law and the sole director of GCS gave evidence on
behalf of her company. She deposed that sometime in the first week of January 2007, she
met Mr. Wilkins who indicated that he had property for sale and as a result, Mr. Wilkins
took her to the property. She entered into negotiations to purchase the property from Mr.
Wilkins after confirming that he was indeed the registered proprietor of Parcel 25. By an
Instrument of Transfer of Land dated 9
January 2007, Mr. Wilkins transferred Parcel 25 to
GCS in consideration for which GCS paid the full purchase price of US$125,000 by
cheques of US$5,000 and US$120,000. On 16
January 2007, the Instrument of Transfer
was duly stamped by the Inland Revenue Department and a stamp duty of US$5,800 was
paid in respect of the transfer. Upon being duly stamped, the Instrument of Transfer was
submitted on 16
January 2007 to the Registrar of Lands for registration. On 17
January 2007, Harneys contacted the office of the Registrar of Lands to inquire of the
status of the registration. Later on, she learnt of the fraud. She averred that GCS has 8
suffered loss and damage and has been deprived of the use and benefit of Parcel 25. She
relied on the public register which indicated that Mr. Wilkins is the registered proprietor of
 Ms. Rosan extensively cross-examined Ms. George. The focus of her cross-examination is
that as an attorney-at-law, Ms. George, is required to exercise due diligence and more
caution and by not investigating Mr. Wilkins’ title or the title of the current owners, she did
not act in a reasonable and sensible manner as purchasers should do. Ms. George was
adamant that there was no need as a prudent purchaser and/or as a lawyer to inquire as to
previous owners of the property as those entries are all crossed out. She also confirmed
that she did not do a valuation before she purchased Parcel 25. She also testified that she
had bought lands before in the BVI, she knows about prices of lands and that was the
price she was willing to pay.
 Ms. George was also extensively and skillfully cross-examined by Mr. Aziz on behalf of the
Registrar. Like Ms. Rosan, he also suggested that GCS did not do the necessary due
diligence in purchasing the property. He even suggested negligence on the part of GCS.
 The Chief Registrar of Lands, Mrs. Moses-Scatliffe gave evidence on behalf of the
Registrar of Lands. She was concise. She acknowledged that Mr. Wilkins should not have
been registered as the proprietor of Parcels 25 and 35 and conceded that the then
Registrar acted in error and made a mistake in registering Mr. Wilkins as the registered
proprietor of both parcels.
 In light of this concession that the then Registrar did act in error when he granted Mr.
Wilkins’ application for registration by transmission and by mistake, registered him as
personal representative of the property, the issues have been narrowed considerably. The
parties have identified the following issues:9
1. Whether GCS was entitled to rely, without further investigation on the Official Search
Certificate which was provided by the Registrar of Lands or were they required to go
behind the register?
2. Whether GCS is a bona fide purchaser for value without notice?
3. Whether GCS is entitled to be registered as proprietor of Parcel 25 as against the
4. What remedy (if any) is available to GCS in the event that it is not entitled to be
registered as the proprietor?
5. What remedy (if any) is available to the Claimants if they are not entitled to rectification
of the register?
6. Whether the Claimants or GCS are entitled to be compensated by the Registrar?
 Issues (4), (5) and (6) oveActp and for purposes of this judgment, will be subsumed under
Was GCS entitled to rely on the Official Search Certificate?
 The issue here is whether GCS was entitled to rely, without further investigation, on the
Official Search Certificate which was provided by the Registrar of Lands in relation to the
proprietorship of Parcel 25 at the time of the Transfer.
 Learned Counsel for the Claimants, Ms. Rosan submitted that GCS is not entitled to rely
on the Official Search Certificate and the land register. In any event, she submitted, GCS
was not diligent and prudent in its search since it was obvious on the face of the land
registers for Parcels 25 and 35 that Mr. Wilkins is not the proprietor of the said parcels.
 Counsel referred to Racoon Limited v Harris Turnbull, Executor of James Turnbull
(1995) BVI Privy Council Appeal No. 33 of 1995.
where the Privy Council in explaining Section 38 of the Act stated as follows: “The section
is undoubtedly concerned primarily with obviating the need for an individual to go behind
the register in order to discover whether the seller, mortgagor or lessor derives his title
from valid deed.”10
 Ms Rosan argued that by extrapolating from the Racoon case, a prudent purchaser should
ensure from the face of the land register that the seller, mortgagor or lessor derives his title
from a valid deed. She contended that it is evident on the face of the land registers for
Parcels 25 and 35 that Jerry Wilkins is not the proprietor and that Mavis Wilkins,
deceased, the mother of Jerry Wilkins, is registered along with Frederick Pickering,
deceased, on the said parcels as personal representatives of Ernest Pickering, deceased.
Thus, Parcels 25 and 35 must be the estate of Ernest Pickering, deceased.
 To my mind, the issue of whether GCS was entitled to rely, without further investigation
can best be answered by looking at the Act itself. The overarching effect of this legislation
has been the subject of judicial pronouncements, the latest being the Privy Council
decision of Nathalie Creque v Cecil Penn6
. In that case, Lord Walker of Gestingthorpe
said at para. 13:
“The Land Registration Act provides for the British Virgin Islands to have the
Torrens system of land registration…. The system was described by Barwick CJ in
Breskvar v Wall
as “not a system of registration of title but a system of title by
 In effect, the Torrens system of land registration is meant to provide a full scheme for
obtaining title by registration and for governing land registered under the Act. In Racoon
Ltd v Turnbull
, Lord Jauncey of Tullichettle stated:
“The philosophy underlying a system of registration of title is that it confers indefeasibility
of title to the specified parcel of land upon the registered proprietor and dispenses with
any need on the part of persons dealing with him to investigate further his right thereto.”
 As I see it, an innocent purchaser for valuable consideration is under no duty to search
behind the entry in the land register pertaining to the relevant parcel to ascertain the
circumstances in which title has been obtained or registered subject only to overriding
interests as set out in section 28 of the Act. A fundamental characteristic of the registered
Privy Council No. 36 of 2005. Judgment delivered on the 27
(1971) 126 CLR 376, 385. See also Nathalie Creque v Cecil Penn (Privy Council Appeal No. 36 of
2005, delivered on the 27
 A.C. 158, 163C-D.11
title system is that the land register is intended to act as a “mirror” reflecting accurately and
incontrovertibly the totality of estates and interests which at any time affect the registered
land. In a sense, the register is everything.
This is provided for in section 38(1) which
“No person dealing or proposing to deal for valuable consideration with a
proprietor shall be required or in any way concerned – (a) to inquire or ascertain
the circumstances in or the consideration for which such proprietor or any previous
proprietor was registered; or (b)…. or (c) to search any register kept under the
Registration and Records Act.”
 In effect, section 38 provides for the indefeasibility principle. In Frazer v Walker
Wilberforce, referred to the phrase “indefeasibility of title” and continued at pp. 580-581:
“The expression, not used in the Act itself, is a convenient description of the
immunity from attack by adverse claim to the land or interest in respect of which
he is registered, which a registered proprietor enjoys. This conception is central in
the system of registration. It does not involve that the registered proprietor is
protected against any claim whatsoever; he will be seen later, there are provisions
by which the entry on which he relies may be cancelled or corrected, or he may be
exposed to claims in personam. These are matters not to be overlooked when a
total description of his rights is required. But, as registered proprietor, and while he
remains such, no adverse claim (except as specifically admitted) may be brought
 The overriding object of the Torrens system of land title registration, upon which the Act is
based, is to achieve greater simplicity and certainty of title to land by a system not of
registration of title but of title by registration. The system confers on the registered
proprietor a generally indefeasible title to the property and obviates the need for persons
dealing with the proprietor to investigate into the history by which the title had been
 Therefore, GCS was entitled to rely, without further investigation, on the Official Search
provided by the Register of Lands and the land register. GCS was under no obligation to
Abbey National Building Society v Cann  1 A.C. 56, 78.
 1 A.C. 569, P.C.
Racoon Ltd v Turnbull (1997) AC 158 at 163 C-D; Williams & Glyn’s Bank Ltd v Boland (1981) AC
487 at 504 F-G.12
investigate the history or the circumstances of the vendor’s title. It was enough for GCS to
only look on the face of the register relating to the land, to determine the totality of interests
or rights affecting the land at any given time. In addition. GCS was under no obligation to
find out whether Mr. Wilkins’ title was a good one or a bad one as the Claimants appear to
be saying. The land register speaks for itself. Looking at the face of the register, the name
“Jerry Wilkins” appears as the registered proprietor. The other names are crossed out. An
innocent purchaser for value is not required to make inquiries or to ascertain the
circumstances in which Mr. Wilkins was registered. In their written skeleton argument, the
Claimants correctly contend that “it is the Registrar of Lands who should investigate the
history of the title to land in order to provide that bona fide purchasers for value acquire an
indefeasible right to land.”
 Part X of the Act is also instructive in this regard. It deals with rectification and indemnity
thereby recognizing, to my mind, that there may be occasions when reliance on the land
register could result in loss. Section 141 provides for right of indemnity to innocent parties
to be compensated by the Government out of moneys provided by the Legislative Council
(now House of Assembly).
 I therefore hold that GCS is entitled to rely, without further investigation, on the Official
Search provided by the Register of Lands and the land register. I gratefully adopt the
dictum of Lord Watson in the Privy Council decision of Gibbs v Messer
the objective of the Torrens system as:
“The object is to save persons dealing with registered proprietors from the trouble
and expense of going behind the register, in order to investigate the history of their
author’s title, and to satisfy themselves of its validity. That end is accomplished by
providing that everyone who purchases, in bona fide and for value, from a
registered proprietor, and enters his deed of transfer or mortgage on the register,
shall thereby acquire an indefeasible right notwithstanding the infirmity of his
See paragraph 47 of Claimants’ skeleton argument lodged on 1
 A.C. 248 at 254.13
Purchaser for value without notice
 Ms. Rosan submitted that GCS is not a bona fide purchaser for value without notice of the
fraud of Mr. Wilkins or the mistake of the Registrar. She submitted that if a purchaser is
diligent and acts in a reasonable and prudent manner, making all the investigations which
a purchaser of land should make, then he is affected only by actual notice. However, if he
omits to conduct the usual investigations, then he might be affected by constructive notice.
She relied on the treatise, Cheshire and Burn’s Modern Law of Real Property
purchaser is deemed to have notice of anything which he has failed to discover either
because he did not investigate the title properly, or because he did not enquire for deeds
relating to the land, or because he did not inspect it.”
 Although Counsel has comprehensively set out the relevant provisions of the Act, in my
opinion, she was unable to identify any specific fact(s) to demonstrate why GCS is not a
bona fide for value without notice. The nearest she gets to this is her cross-examination of
Ms. George as to the sale price of Parcel 25, implicitly suggesting that the land was worth
more than $125,000. The other point relates to the search conducted by GCS and/or its
solicitors and whether Ms. George herself, as an attorney-at-law should have been more
vigilant in her investigation.
 However, under the Act, a purchaser for valuable consideration is under no duty to search
behind the entry in the land register pertaining to the relevant parcel of land to ascertain
the circumstances in which title had been obtained or registered: see section 38. The only
notice which is imputed to a proprietor acquiring land is notice of the entries in the land
register pertaining to the land. This is provided for in section 30 which states:
“Every proprietor acquiring any land, lease or charge shall be deemed to have had notice
of every entry in the register relating to the land, lease or charge.”
Fifteenth Edition Butterworths, 1994, at page 61.14
 So, it is plain that instead of investigating the history of the circumstances of the vendor’s
title, the purchaser need only look to the entry in the register relating to the land to
determine the totality of interests or rights affecting the land at any given time.
 In my opinion, GCS is the bona fide purchaser of Parcel 25, because GCS paid money for
the land to Mr. Wilkins, who is the registered as the proprietor according to the land
register; and as such GCS is entitled to be registered as the proprietor of Parcel 25. It is a
fundamental rule of law that a bona fide purchaser of the legal estate for valuable
consideration without notice has “an absolute, unqualified, unanswerable defence” against
the claims of any person with a prior adverse equitable right or interest
. However, the
equitable doctrine of notice has very little relevance to registered land under the statutory
regime which has whittled away the relevance of notice, knowledge and good faith in the
common law sense
 Section 38 (2) is also appropriate. It provides as follows:
“Where the proprietor of land, a lease or a charge is a trustee he shall, in dealing
therewith, be deemed to be absolute proprietor thereof, and no disposition by
such trustee to a bona fide purchaser for valuable consideration shall be
defeasible by reason of the fact that such disposition amounted to a breach
of trust.” [emphasis added]
 As earlier stated, section 38 has long been said to confer indefeasiblilty of title to a
specified parcel of land upon the registered proprietor and dispenses with any need on the
part of persons dealing with him to investigate any further his rights to that land. However,
and importantly, the section does not protect the registered proprietor against any claim
whatsoever: see section 28 which makes all registered land subject to the overriding
interests listed in the section even though they do not appear on the Register.
 Learned Counsel, Ms. Rosan submitted that GCS cannot be registered as the proprietor of
Parcel 25 because they would be subject to the overriding interests of the Claimants.
Pilcher v Rawlins (1872) 7 Ch. App. 259, 269, per James LJ.
Williams v Glyn’s Bank v Boland  A.C. 487, at 503-504.15
According to her, the Claimants are in actual occupation of the Parcel 25, (as mentioned in
Section 28(g)) and that they have always been in such occupation, in their capacity of
personal representatives of the estate of their father.
 It is not disputed that the Claimants have a beneficial interest in the property. The question
however, is whether the Claimants were in actual occupation. In her submissions, Ms.
Rosan identified the rights that the Claimants have but did not elaborate on how the court
can conclude that the Claimants were in actual occupation. As Byron C.J. stated in
Spiricor of Saint Lucia Ltd v The Attorney General of Saint Lucia and Hess Oil St.
“it is only if the appellant is in actual occupation or in receipt of income
from the property that section 28 (g) would operate to protect any rights he may have. The
person must be in actual possession for that is the only way that the inquiry referred to in
paragraph 28 (g) could trigger.”
 There is no evidence to show that anyone was living on the land at the time of the
purported transfer to GCS. So, no rent could be collected. Also, there is no evidence that it
was being farmed or cultivated. The evidence of one of the Claimants is that he has been
living in New York since 1973. So, the Claimants were not in actual occupation and
therefore their rights that they allege cannot be considered an overriding interest. There is
also no dispute that the transfer to GCS was for valuable consideration. Thus, the
purported transfer of Parcel 25 to GCS was not be subjected to any overriding interest.
 Then, there is no question that fraud can render a title defeasible. However, the purchaser
must show that, having given valuable consideration for the legal estate, he acted in good
faith in that his conscience was unaffected by knowledge or notice of any prior equitable
interest; and that there must not be a mere absence of knowledge or notice but this
absence must be genuine and honest.
 We remind ourselves that although section 140 confers jurisdiction on the High Court to
rectify the register in instances of entries or omissions made by fraud or mistake, the Act
 55 W.I.R. 128 at page 132.16
also specifically protects the interest of a bona fide purchaser for value. In fact, section 140
(2) provides that the register cannot be rectified unless the purchaser for value either had
knowledge of or substantially contribute or caused the fraud or mistake.
 As I see it, there is no evidence to suggest that GCS substantially or in any way
contributed or caused the alleged fraud or mistake or had any knowledge of the fraud as
required by Section 140 (2). There is also no evidence of any ‘fraud’ being evident on the
face of the land register so as to put the purchaser on notice. On the contrary, GCS has
complied with all the requirements of the Act. GCS carried out an official search (which
has not been disputed by the Claimants) on which all purchasers are entitled to rely. That
search revealed no encumbrances or adverse claims on the title.
 In Ecedro Thomas v Augustine Stout et al, the Court of Appeal held that particulars of
fraud must be distinctly and specifically pleaded and in the same way that the court
imposes a very high standard for a claim of fraud, the court imposes an equally high
standard for denying a bona fide purchaser the fruit of his consideration by his or her
purported knowledge or contribution to the fraud. It is not sufficient for the litigant to merely
say that “it is evident on the face of the land register for Parcels 25 and 35, that the said
parcels were never the estate of Mavis Wilkins, deceased.”
 Applying the law to the relevant facts in this case and considering the well-known
observations of Lord Wilberforce in Midland Bank v Green18
on the meaning of the words
“bona fide” or “good faith”, I find that GCS was a bona fide purchaser for value
consideration without notice.
 I now come to the key issue in this case: do the facts of the case justify a rectification of
the land register in favour of the Claimants or the registration of the transfer to GCS?
 A.C. 51317
 The learned authors of Megarry and Wade, The Law of Real Property
on the effect of
failure to register states:
“Unless and until a transfer of a registered estate or charge is completed by registration
the transferor remains the proprietor of the registered estate or charge. In consequence
the transferee cannot normally exercise any of the powers of a registered proprietor.
Conversely, the transferor may still be able to, at least in some circumstances. Such a
transfer is however effective in equity, and takes effect as a minor interest. As such, the
rights of the transferee will be defeated by a disposition of the registered land for value
unless it is either –
(i) protected by an entry on the register; or
(ii) an overriding interest.
 This is echoed in sections 27, 28 and 38 of the Act; the effect of which is two-fold. First, as
GCS correctly contended, the Claimants’ claim as a beneficiary and proprietor of the land
was not registered when the transfer to GCS was executed, nor was it registered when
GCS’ transfer was submitted for registration. This is not an overriding interest
 Secondly, whilst the registration of GCS’s transfer submitted for registration on 16
January 2007 is still pending, on 9
January 2007, GCS protected its interests as
purchaser by noting the particulars of the sale in the Stay of Registration application as
required by section 42 thereby creating a registered minor interest.
 Thus, there are now two competing equitable interests. Section 42(1) is clear that the 9
January 2007 Official Search and Stay of Registration gave GCS’ interest priority over any
subsequent applications for notation of equitable interests including the Claimants
Therefore, by the 9
Edition, para. 6-032
January 2007, GCS had acquired the equitable interest by payment
of consideration, execution of the transfer and filing a notation of GCS’ interest on the
register in the Official Search and Stay of Registration, which by section 27 was a noted
disposition for valuable consideration (through a minor interest awaiting registration)
See paragraphs 41 and 42 [supra] and paragraphs 32-33 of judgment delivered on 20
June 2007 in the
Smith v Morrison and another  1 All ER 957, 977 (gh).18
capable of defeating the Claimants’ interest. On the other hand, the Claimants rely on an
unregistered equitable minor interest without valuable consideration.
 The question now is what is just in the circumstances when they are two competing
equitable interests. GCS has correctly identified some important circumstances which are:
a. The estate claimed in this case is for a voluntary transfer which is not an overriding
or an unregistered interest capable of defeating the vesting of an absolute title
within section 27 and 28.
b. The title of a bona fide purchaser for value from a trustee (even if it is an equitable
interest) cannot be defeated by reason of the fact that that disposition amounted to
a breach of trust: section 122 (3).
c. A person dealing or proposing to deal with land for valuable consideration are not
required to inquire or ascertain the circumstances in which such proprietor or any
previous proprietor was registered: section 38.
 Another factor for consideration is that the Claimants’ claim to their father’s estate arose
almost 7 years upon his death on 1 February 2000. For five years they did nothing until
August 2005. On 15
November 2006, they were granted a Grant de Bonis Non
Adminstratus (with the Will annexed). Pursuant to section 30, by 6
November 2006, they
had constructive notice of Mr. Wilkins’ registration as sole proprietor of both Parcels 25
and 35 but took no steps in the estate until 16
January 2007, by which time Mr. Wilkins,
as the registered proprietor, had already sold Parcel 25 to GCS.
 The Court is therefore called upon to weigh the equities of the parties and to examine the
principles of justice and fairness. It is a fact that GCS took Parcel 25 for valuable
consideration at a time when there was no notice of the claim in this action, a notation of
their interest was duly registered by 9
January 2007 while the Claimants, as heirs to the
estate, being in a position to protect their estate since their father’s death never did so,
caution or otherwise, until GCS had already expended more than $125,000 having also
paid stamp duties and other taxes. The reality of all this is that the Registrar was under a 19
duty to register Parcel 25 in favour of GCS when it presented the Instrument of Transfer on
 The Claimants criticize GCS for not doing a valuation before purchasing Parcel 25. Ms.
George says that she has bought land on previous occasions so that was the price she
was willing to pay. The Claimants say that the land is worth $225,000 because of its
location and its sentimentality. They themselves have not provided the court with a
valuation. Furthermore, sentimentality is not a factor to be taken into account in
determining the purchase price. The more serious criticism, though, which is levied at
GCS, is its failure to go behind the register to examine the title of the previous owners.
This criticism was also supported by Mr. Aziz when he cross-examined Ms. George. He
surmised that Ms. George was negligent in not scrutinizing carefully the history of the titles
of the previous owners. The simple answer is that GCS is under no obligation to do so.
 Suffice it to say, the Claimants themselves have ignored their duty as trustees to actively
protect their estate. They failed to do so for over three years. They are also asking the
court to impose a higher duty on GCS because of Ms. George’s profession as an attorneyat-law. In effect, they are saying that GCS should go behind the Register and examine the
Registrar’s exercise of his duty in entering Mr. Wilkins as the registered proprietor. This is
not the overriding objective of the Torrens system of land registration. This submission is
 Although Mr. Aziz has prudently conceded that the Registrar acted in error when he
granted Mr. Wilkins’ application for registration by transmission and by mistake, registered
him as personal representative of Parcels 25 and 35, he insinuated during the crossexamination of Ms. George that GCS was negligent in not doing proper due diligence
when she purchased the property. This submission is also fatally flawed because what Mr.
Aziz is asking GCS to do is exactly what the Registrar should have done. My
understanding of the Torrens system of land registration is that the land register is
intended to be the “mirror” reflecting accurately and indisputably the totality of estates and
interests which at any time affects the registered land. As such, there is no need on a 20
purchaser for value without notice to look beyond the face of the land register. On the
contrary, it is the Registrar who should carry out that task and as such, it is upon him that
the blame should rest.
 In light of the fore-going, I find that GCS is a bona fide purchaser of the legal estate for
valuable consideration without notice and as such, takes Parcel 25 free of any prior
equitable rights over the Claimants.
 In those circumstances, I will order that the Registrar forthwith register Parcel 25 in favour
Remedy to the Claimants
 The issue which also falls for determination is what remedy (if any) is available to the
Claimants since it is established that Mr. Wilkins perpetuated a fraud and the Registrar
acted in error when he mistakenly registered Mr. Wilkins as the proprietor of Parcel 25. .
 Section141 (1) is enlightening. It provides that:
“Any person suffering damage by reason ofa) any rectification of the register under this Act; or
b) any mistake or omission in the register which cannot be rectified under
this Act, other than a mistake or omission in a first registration; or
c) any error in a certificate of official search issued by the Registrar or a copy
of or extract from the register or in a copy of or extract from any document
or plan, certified under the provisions of this Act,
shall be entitled to be indemnified by the Government out of moneys provided by
the Legislative Council”[now House of Assembly].
 Subsection (2) provides that “no indemnity shall be payable under this Act to any person
who has himself caused or substantially contributed to the damage by his fraud or
negligence, or who derives title (otherwise than under a registered disposition made bona
fide for valuable consideration) from a person who so caused or substantially contributed
to the damage.” There is no evidence to demonstrate that the Claimants were aware of the 21
fraud perpetuated by Mr. Wilkins nor were they aware of the mistake made by the
Registrar. Mr. Wilkins has disappeared and sadly, the brunt of the burden of
indemnification will now fall on the Government since an innocent party has suffered loss
by reason of the rectification of the land register. The State guarantees the title of the
so that claims for rectification of the register and indemnity from the
fund are complimentary
 On 15
February 2008, the Court struck out an indemnity claim by GCS when it sought
compensation from the Government for damages suffered as a result of the rectification of
the land register. In a nutshell, the Court struck out the claim holding that section 141 is
clear: any person suffering damage … shall be indemnified by the Government out of
moneys provided by the House of Assembly.
 It is plain that the Claimants will now have to bring a suit against the Attorney General by
virtue of the Crown Proceedings Act.
But this is mere formality. As all litigation must
come to an end, I urge the Attorney General to resolve this matter cordially and
expeditiously as I cannot see how the Government can escape the payment of damages
suffered by the Claimants.
 As is evident from the judgment of Olivetti J., the court has no jurisdiction to entertain this
issue. In the Attorney General of St. Lucia and Comptroller of Customs v Vance
, Gordon JA had this to say:
“It is undoubtedly good law that where a statute creates a right and, in plain
language gives a specific remedy or appoints a specific tribunal for
enforcement, a party seeking to enforce the right must resort to the remedy or
that tribunal, and not to others….”
See, generally, Gray, Elements of Land Law, pp. 237 – 238 et seq.
Chowood Ltd v Lyall (No. 2)  1 Ch. 426, 2 Ch. 156; Re Chowood’s Registered Lands  Ch.
See Section 6 of the Crown Proceedings Act, Cap. 21.
Civil Appeal No. 14 of 2003 (Saint Lucia) -unreported
See also HCVAP 2008/010 -Bryon Smith v British Virgin Islands Electricity Corporation. Judgment
delivered on 12
January 2009.[ unreported]. 22
 In the premises, my order will be:
1. With respect to Parcel 25, I will order that the land register be rectified forthwith by
causing GCS to be registered as the registered proprietor.
2. With respect to Parcel 35, I will order that the land register be rectified forthwith by
cancelling the registration by transmission of Jerry Wilkins and substituting it with
the registration by transmission of the Claimants.
3. The Claimants are at liberty to pursue a claim for indemnity against the Attorney
General under the Crown Proceedings Act and not against the Registrar of Lands.
4. Both GCS and the Claimants are entitled to prescribed costs to be paid by the
Second Defendant, the Registrar of Lands which will be calculated on the amount
of $125,000. I bear in mind that the Claimants’ claim relate to two parcels of land
but nothing except a default judgment was obtained with respect to that parcel of
land so costs ought to be awarded accordingly and after the market price of that
Parcel has been determined. If the parties cannot reach agreement on the latter
issue, then they could come back to court.
 Finally, I am very grateful to all lawyers and the parties for their forbearance in awaiting
this judgment which was long overdue but circumstances beyond my control precluded me
from delivering it sooner.
High Court Judge