Johnson v Cibc Caribbean Ltd
| Jurisdiction | Antigua and Barbuda |
| Judge | Thomas, J. |
| Judgment Date | 11 November 2004 |
| Neutral Citation | AG 2004 HC 62 |
| Docket Number | ANUHCV 0252 of 2002 |
| Court | High Court (Antigua) |
| Date | 11 November 2004 |
High Court
Thomas, J.
ANUHCV 0252 of 2002
Mr. John Fuller for the claimant
Ms. Eleanor Clarke for the defendant
Real property - Charge — Claimant wife contending that husband charged property on which matrimonial home was built without consulting her — Defendant serving formal demand of intention to sell the property due to non — payment — Claimant's case was that she was in actual possession at time of charge and was entitled to one — half interest in the property — Claim based solely on alleged expenditure on house as distinct from other non — monetary contributions — Mere occupation not enough — Claim failed — Williams and Glyn's Bank Ltd. v. Boland [1980] 2 All E.R. 408.
Central to the dispute in this matter is parcel 33 of block 43 2197B (or any subdivision thereof on which the matrimonial home stands) Hodges Bay and Thibous Registration Section (“the parcel”). The said parcel stands charged to the defendant. This was effected by the claimant's husband (“the Chargor) and the claimant contends that this was done without consulting her. However, commencing on 5th February 2002 the defendant served a formal demand on the chargor of its intention to sell the parcel due to the delinquency in repayments.
It is the claimants case that she was in actual possession of the matrimonial home since early 1981 being physically present thereon from about 1998 and since 1989 is beneficially entitled to a one-half interest in the parcel.
It is also the claimant case that the defendant, prior to the charges over the parcel either dispensed with or failed to undertake inquires as to the occupation of the parcel in the claimant's occupation and a consequence the beneficial interest the said parcel was not discovered.
The circumstances the claimant seeks declarations that 1. the defendant is not… to enforce by way of sale its charge over the said parcel and 2. she is… to protection under section 28(g) of the Registered Land Act, Chap. 374 (“the Act”) as having an interest in the said parcel which overrides the defendant's… as chargee and as such entitled to remain in possession.
The defence the defendant denies that the claimant had no knowledge of the… over the said parcel. It is contended that in or about April 1992 their… visited the parcel in connection with the proposed charge and that time the property was inspected and discussions regarding the said… charge were held in her presence. It is further contended by the defendant that their inquiries revealed that the chargor was the sole owner of the said property.
The issues for determination are these:
- Whether the claimant is a person in actual occupation of the property and did the defendants make the necessary inquiries of the persons in actual occupation. 2. Whether the claimant was present at any discussions regarding the proposed loan and whether the claimant had knowledge of the charge executed in 1992. 3. Whether the claimant is entitled to protection under section 28(g) of the Act as having an interest in the said parcel that overrides the defendant's interest as chargee. 4. Whether the defendant is entitled to realize its security.
…is placed in section 28(g) of the Registered Land Act, Chap. 374 by the… and as such it is central to the issues. The provision is as follows:
‘28. Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register:–
(a)-(f) ….
(g) the rights of a person in actual occupation of land or in receipt of the rents and profits thereof save where inquiry is made of such person and the rights are not disclosed.”
This provision is quite common in legal systems with a system registered titles and is to be found in statutes of England and of some Caribbean States, including St Lucia and of course Antigua and Barbuda.
The provision is concerned with overriding interests and Megarcy and Wade, The Law of Real Property (5th ed.) at p. 204-205 notes the following:
“Overriding interests bind the proprietor of registered land, even though he has no knowledge of them and no reference is made to them on the register. The principle is that the registered title is a substitute for the title deeds, but not the necessary inquiries and inspections.
Most overriding interests, though by no means at all, are legal rights, but it must be emphasised that as far as incumbrances on registered land are concerned, the issue in deciding whether a purchaser is bound irrespective of any entry on the register is not whether the rights are legal on equitable but whether they are overriding interests or minor interests.”
It is submitted on behalf of the claimant that the defendant having failed to make the necessary inquiries to obtain the claimant's consent to the charges is barred from exercising any right inconsistent with the claimant's overriding interest, that being a possessory right or a right to occupy pursuant to her legal status as an equitable tenant in common in possession.
For the defendant it is submitted that the question as to an overriding interest and whether or not it has been overreacted can only be determined on the evidence presented at the trial.
Whether the claimant is a person in actual occupation of the property and did the defendant make the necessary inquiries concerning the persons in actual occupation.
Whether the claimant was present at any discussion regarding the proposed loan and whether the claimant had knowledge of the charge executed in 1992
Because of the inter-relationship between these two issues it is convenient to discuss them together. It is common ground that the claimant was a person in actual occupation. Her evidence is that she has been living at the home since about February 1982 after returning from Barbados. On the other hand, the defendant's witness, Everette St Clair Christian, said in his witness statement that prior to the use of the property as security he visited the property in March 1992, as is usual in the circumstances, and that at that time claimant was present. This satisfies the test laid down in Williams and Glyn's dank Ltd v. Boland [1980] 2 All E.R. 408 (“the Boland case”) in which it was held that the words “in actual occupation” in section 70(1)(g) of the Property Act 1925 (the analogue of section 28(g) of the Act) were ordinary words of plain English and should be interpreted accordingly. According to their Lordships the requirement was physical presence and that the word ‘actual’ was not intended to introduce any additional qualification.
As regards the inquiries, the claimant in her witness statement said that prior to the execution of the charge CIBC made no inquiries concerning the occupation of the property. According to her: “If CIBC had made the most cursory inquiry they would have discovered my presence there and I would have informed them of my interest in the property. They would also have discovered that my two daughters were also living in the home. I would not have given my consent to the charges being made as by then I had invested virtually all my life savings in the property.”
In cross-examination the claimant said that when the banks representative visited the property in 1992 she did not speak to anybody on that occasion and that the loan was not discussed in her presence. She also mentioned that at that time she was not working. However, in re-examination the claimant told the Court that she never had any discussion with Mr. Christian and that she saw him once at the house at which time she shook his hand and spoke to him about the loss of his daughter. According to her she did not see him after that.
Everette St Clair Christian had a different account. According to him on his visit in March 1992 he held a discussion with the claimant and her husband concerning the mater of security for the loan – not the details of the loan. This was repeated in cross-examination at which time he also said that he did not ask the claimant if she had an interest in the property but that he had asked Mr. Johnson about the use of parcel 202 situate at Independence Drive, being the registered address of his company, as security. According to him he was told it was in the claimant's name. However with respect to the property at Hodges Bay which was registered in Mr. Johnson's name he confirmed that it was the matrimonial home.
Apart from the matter of the occupation, the question of the failure by the defendant to make inquiries emerges from the evidence. Therefore the only outstanding issue is this: who was present when the security was being discussed? In this regard the evidence is contradictory and having regard to all the circumstances, the evidence on behalf of the defendant is accepted that the claimant was present when the security was being discussed with Mr. Johnson. Furthermore, the evidence of Everette St Clair Christian regarding parcel 202 assists in this conclusion since it shows that the question of security was not confirmed to the Hodges Bay property.
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