The Future Of Flag/Temenos Development

The Case of John A. Gumbs v The Attorney General of Anguilla is of such far-reaching importance that it warrants in depth analysis of the assertions, facts, nuances and findings way beyond what is permissible in terms of space in your newspaper.

However, the assertion contained in item (4) of the published letter to the effect that at the time of the Adjudication process the “field officer which happens to be the current Director of Lands, clearly shows in his field notes that the public path existed but somehow was not delineated on the Land Registry map 58715B when it was completed in 1975” confounds the proper understanding of the issues and is inconsistent with the Adjudication Records as well as the testimony of the same Field Officer and Director of Lands given at the time of the trial of the case.

The writer would have invited the Privy Council to fall into the error of holding that the omission of a public right of way from the Land Registry Map, which way was not found to exist by the Demarcation Officer and Adjudication Record, was a mere human error which the Privy Council ought to have rectified. Fortunately, the Privy Council did not so hold.

At trial Mr. Gifford Connor, the field officer and Director of Lands, testified that as field officer he investigated a dispute between Rev. Gumbs’ land and another claimant. In the course of that testimony Mr. Connor made the following admissions on the record:
He conceded that in relation to the property in question, that his instructions from the Demarcation Officer had nothing to do with a path or right of way; he went to deal with a boundary dispute;
He accepted that there was no right of way shown along the northern arc of Parcel 2.
That there does not exist any marking of a footpath along the arced northern boundary of Parcel 2 ;
That in the survey of the disputed area prepared by him in or around 1975, that he did not define any footpaths therein;
That according to the Land Adjudication Ordinance, the system involved recording public roads, rights of way wherever they existed;
That according to the Land Adjudication Ordinance, that if a public road was not recorded that the Governor would petition on behalf of the Crown;
And that on the Demarcation Map and Registry Map there is not shown any right of way. [See page 248 lines 23-25, page 249 lines 1-25]

Topographical Maps And Aerial Photographs
The assertion by the writer that a public path is shown in the field notes is also inconsistent with the disclosures shown in the markings on the topographical maps and aerial photographs which formed the basis of the Demarcation Map.
On those topographical maps the ultimate boundary line of Parcel 2 is denoted by a broken line of long dashes which is subject to interpretation by the Legend on those maps governing the interpretation of the markings on the maps.
In this regard the Director of Lands and two Surveyors gave evidence and advised the Court that according to the Legend of interpretation, the markings on the boundary line were to be interpreted as showing a cultivation line, not a track.

That interpretation of the Legend is consistent with Mr. Connor’s testimony that he
had no instructions with respect to the existence of a track along the arced northern boundary of Parcel 2 and he made no notation and calculations, bearings and distances, relative to such a track.

Human Error
No human error was involved. The High Court did not make any finding of a human error.
In fact, faced with the serious non-existence of a public right of way on the Demarcation Map and the Land Register Map, the Attorney General founded his case on memorial use of the track. He urged the High Court to find that once he could show that memorial use of the track, there was no reason to rely upon the Demarcation Maps and Registry Map on the grounds that by reason of the over-riding interests excepted from the Land Register under the provisions of section 28 (a) of the Registered Land Ordinance, the public right of way was enforceable as a right of way subsisting at the time of first registration without it being shown on the maps.

It was the submission of Counsel on behalf of Rev. Gumbs that section 28 of the Registered Land Ordinance dealt with private rights of way, not public rights of way as claimed.

Nevertheless, the High Court on the basis of the unregistered over-riding interests set out in section 28 of the RLA found a memorial use of a 2-3 foot track and so declared the 2-3 foot public right of way. The Privy Council upheld Counsel’s contention that public rights of way did not fall within the ambit of section 28 of the Registered Land Act; that if the public right of way were not shown on the Final Adjudication Record it was not subsisting and enforceable.

It was the submission of Rev Gumbs that since no public right of way was claimed over Parcel 2 by the Commissioner or anyone else in the Adjudication process, once the Adjudication Record was complete and final, the matter could not be adjudicated by the High Court 30 years later. In this regard he relied upon high judicial authority:

See SKELTON v. SKELTON (1986) 37 WIR 177 per Robotham CJ at page 182

“I am of the view that the Respondent not having exercised his right to petition the adjudication officer and not having exercised his right of appeal to the Court of Appeal nor sought an extension of time within which to appeal, and lastly (but by no means least) not having done anything for a period of nine years cannot now impeach the finding of the adjudication officer by an ingenious action for rectification in the High Court.”

This principle was earlier applied in PORTLAND ET AL v. JOSEPH Civil Appeal NO. 2 of l982 at p 7.
Byron J.A further opined:

“These provisions demonstrate that the Adjudication process was a judicial process with a right of appeal. They also provide finality to the adjudication process and make it clear that the document upon which the Registrar of Lands is bound to act is the final adjudication record…”

It was submitted on behalf of Rev. Gumbs that the prayer to the High Court to make a declaration as to the existence of a public right of way which the Crown claims as subsisting before 1st July, 1974, was an invitation to the Court to fall into error of embarking upon an illegal process of appeals both as to the jurisdiction of the High Court to entertain, and the time limited by statute for the making of such an appeal, for the determination of the existence of a right of way at the time of first registration

There was no omission, fraud or mistake by which the first registration has been obtained. The Register and Registry Map accurately reflect the judicial determination of the Adjudication Officer.
WEBSTER v. FLEMING (1995) Civil Appeal No. 6 of 1993 (Unreported) (Anguilla) is a case in which the Land Register was rectified by the Court on the grounds that the entries made therein in the process of first registration were inconsistent with the finality of the adjudication process and Record. Per Byron J.A. page 9:

“The legislation intends that this Adjudication process should be final except for a right of appeal to the High Court against the decisions and acts of the Adjudication Officer within a limited time as expressed in Sections 23 and 24.”
Per Robotham C J. in SKELTON v SKELTON at p 181:
“I would agree that, if the expression of the final decision of the adjudication officer was incorrectly recorded on the Land Register, section 140 could be resorted to. I cannot, however, accept that it can be applied in the original jurisdiction of the High Court to alter in a material particular his individual findings of fact, based upon his own inquiry, simply because the judge sitting in an original jurisdiction is of the opinion that his( the Adjudication Officer’s) findings were erroneous. That is not the type of mistake contemplated by section 140.
Rev. Gumbs submitted that the Crown, not having exercised its right to petition the adjudication officer and not having exercised its right of appeal to the Court of Appeal nor sought an extension of time within which to appeal, and lastly (but by no means least) not having done anything for a period of 30 years cannot now impeach the finding of the adjudication officer by an ingenious action in the High Court for a declaration of the existence of the purported public right of way.

The Privy Council is entirely in agreement with this submission.

It is to be noted that in resisting the Crown’s invitation to fall into the error of usurping the powers of the Adjudication Officer, the Privy Council in Rev.Gumbs’ case observed:
“The purpose of the 1974 Ordinance was well summarised in Webster v Fleming (1995) Anguilla Civil Appeal no 6 of 1993 at page 5, by Byron JA who said that it:
“was enacted in Anguilla ‘to provide for the adjudication of rights and interests in land and for purposes connected therewith’, with provisions for appeal to the High Court. At the same time the Registered Land Ordinance was enacted ‘to make provision for the registration of land and for dealings in land so registered and for purposes connected therewith.’ All land in Anguilla came subject to these Ordinances which together prevailed over all other laws relating to land adjudication and registration. The end product of this judicial adjudication process was the compulsory creation by the Registrar of Lands of a first registration of land with absolute or provisional title on the Land Register. … by virtue of the final adjudication record emanating from the judicial process under the Land Adjudication Ordinance. Such a first or subsequent registration can be defeated and rectified only on proof of mistake or fraud under the Registered Land Ordinance.”

The mistake urged by the writer of the letter of 24th July, 2009 is a purported mistake of the field officer/ surveyor. It is not even a mistake of the Adjudication Officer. And certainly, it is not a mistake occurring “under the Registered Land Act.” The Privy Council had no power to rectify this alleged “Human Error”.

The social implications of the Privy Council holding otherwise would be that the Attorney General could at any time and with respect to any land in Anguilla claim and have declared over any private land public rights of way as being subsisting before July 1974.
The Adjudication Record could never be final and no title to land be secure. The finality of the whole Adjudication process would be subverted and the basis of economic growth imperiled.

It must not go un-noticed that the Attorney General claimed for a public right of way 32 feet in width. The extravagance of such a piratical claim should be dealt with elsewhere. It is sufficient to say that, despite a plethora of other witnesses, Arthur Richardson, a joiner and a man of measurements, testified on behalf of the Crown, that the track which he used on Parcel 2 was “Two feet in width, give or take a little.”

The High Court, albeit in error, declared a public right of way 2-3 feet wide and no more.
On the basis of fundamental and established legal principles, the Privy Council correctly reversed that declaration.

Dame BERNICE V. LAKE Q.C.,LLB.Lond, .(Hon.) LLD UWI