On 28 April 2009 the Privy Council, on an appeal from the Court of Appeal of Belize, delivered a landmark judgment on a jurisdiction to rectify a land register on the ground of fraud and mistake.
A fraudster became registered as the freehold owner a parcel of land situated on the Haulova Creek in Belize City. She did so by lodging at the Land Registry title documents which related to an entirely different parcel of land. The fraudster then sold the parcel of land to a third party. The original owners of the land issued proceedings seeking an order that the Land Register be rectified to reinstate them as the registered proprietors. Under Belize’s land registration system, the Land Register can be rectified if “any registration, including a first registration, has been obtained, made or omitted by fraud or mistake”.
The Privy Council held that the Land Register should be rectified. The fact that the registration of the fraudster had been obtained by fraud, and also made by mistake, gave the Court a discretion – which should be exercised – to rectify the register against any successors in title of the fraudster however far “downstream” of the original fraud (albeit that this power to rectify was subject to a protection afforded to bona fide purchasers for value who were in possession that did not apply in the instant case). Moreover, the registration of the third party had been made by mistake because “the causative effect of [the mistaken registration of the fraudster] persisted up to and resulted in the second registration in favour of the third party”. The registration of the third party was also obtained by fraud because: (i) the onward sale of the land to the third party was part-and-parcel of the original fraud; and (ii) the third party had knowledge of the original fraud (in the sense that his suspicions were aroused and he abstained from making enquiries for fear of learning the truth). The third party was not assisted by the fact that the case against him had not been put to him in any cross-examination.
This is an important case which has the potential to affect the interpretation of the rectification provisions in the Land Registration Act 2002. Under the 2002 Act the Court has a jurisdiction to amend the register for the purposes of “correcting a mistake” subject to a protection afforded to proprietors in possession unless, amongst other things, they had “by fraud…caused or substantially contributed to the mistake.”
David Elvin QC and Tom Weekes appeared for the Respondents.
For more information on this judgment, please click here.