Court held Director lacked power to correct registration area errors under s.43, requiring s.61 procedure instead.

[*185] 1984 Oct.6

(ARTEMIS,S.D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Stella Andrea Pratsi and Another,

Applicants,

v.

Attorney-General of the Republic,

Respondent.

(Appeal Application No.10/82).

Immovable Property - Error in registration concerning area of plot in question, i.e the area was greater than what was justified, having regard to the perimeter of the land in question - Correction of such error - The immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 - Sections 43 and 61 - The correct procedure for the correction of such error is not that envisaged by section 43, but that of section 61.

Words and Phrases: “For the sake of a more accurate definition of such property or greater clearness, including a different description of the boundaries, area or registration number” in section 43(2) of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 - These words do not provide for any difference that entails any change in the actual area or physical boundaries of the plot in question.

E. Theodoulou, for the Applicants.

A. Vladimerou for Attorney-General, for the Respondent.

Parties absent.

JUDGMENT

The following judgment was delivered by:-

ARTEMIS, S.D.J. : This is an Appeal by the [*186] Appellants/Applicants against the decision of the Director of Lands and Surveys, dated 12.1.82 by which he decided to register as part of the river land which formed part of a plot owned by the Applicants. The main witness who testified before the Court was A.W.1 Andreas Michaelides a D.L.O clerk, 1 st grade. The effect of his evidence is that it was found out that there was an error in the original registration in so far as the area of the plot of the Applicants was greater than what was justified, having in mind the perimeter of their land. This error the Director purported to correct under a scheme of general registration pursuant to ss.43 and 45 of the Immovable Property (Tenure Registration and Valuation) Law, Cap. 224.

Learned counsel for the Applicants examining the witness tried to show that both on the facts and on the law the

decision was wrong and submitted that the Director had no power to effect such a change in the registration pursuant to s.43 and this could only have been done under s.61.

Having carefully scrutinised the evidence of the witnesses and bearing in mind in particular the evidence as to the inaccuracies that may result when registration is based on a plan of 1 :5,000 scale and A.W. 1 ‘ s evidence that the perimeter of the plot did not justify the area under the registration sought to be changed, I have come to the conclusion that on the balance of probabilities on the factual aspect of the case, the

conclusion of the Director that there was an error in the registration was correct.[*187]

I shall now turn to examine the legal question raised in this application, namely, whether correction of the error could have been made by the general registration instead of under the procedure envisaged by s. 61 of Cap.224.

S. 43 provides as follows:

“43. (1) The Director may order a general registration to be made of all the immovable property in any town, village or quarter or any specified part thereof in the name of its respective owners:

……………………

(2) Where any immovable property in any town, village or quarter or any specified part thereof for which the Director has ordered a general registration to be made is already registered on the date of such order, the Director may relate the registration of such immovable property to the plan used as the basis of the general registration and may make a new edition of such registration for the sake of a more accurate definition of such property or greater clearness including a different description of’ the boundaries, area or registration number:

……………………”

On the other hand s.61 reads:- [*188]

“61. (1)The Director may correct any error or omission in the Land Register or in any book of the District Lands Office, or in any certificate of registration , and every such Register, book or certificate of registration so corrected shall have the like validity and effect as if such error or omission had not been made.

(2) No amendment shall be made under the provisions of subsection (1) of this section, unless thirty days’ previous notice is given by the Director to any person who might be affected thereby, and any person may, within the period of thirty days from the date of the giving of such notice, lodge an objection with the Director who shall thereupon investigate the same and give notice of his decision thereon to the objector.”

It is obvious from the tenor of these sections that s.43 was never intended as a vehicle through which the Director could correct errors and omissions in the books of the District Lands Office or in any certificate of registration, such power being reserved to be exercised under s 61. It is true that where in s.43(2) provision is made for the general registration it is also provided that such new registration may be made “for the sake of a more accurate definition of property or greater clearness which is to include a different description of the [*189] boundaries, area or registration number”. Thus, one might argue , and I think it is on this provision that Respondents based themselves, .that the Director had the power to do what he did pursuant to s. 43. My view on the matter is that what the above words provide is for a difference in the description of the boundaries, area or registration only and a difference that would not entail any change in the actual area or physical boundaries of the plot in question.

Furthermore, bearing in mind that a mechanism for correction of errors is ad hoc provided for by s.61 I have finally come to the conclusion that s.43 does not give a similar power to the Director. It is in my judgment necessary for a procedure under s. 61 to be first completed in order to enable the Director to clarify the matters included in s. 43( ). I therefore declare that the decision of the Director under consideration was null and void and I hereby set it aside, but bearing in mind my findings on the facts I make no order as to registration of the property, as it may still be open to the Director to proceed under s. 61 or otherwise to correct the error.

Costs of this Appeal/Application are awarded against Respondent.

Decision of Director set aside with order for costs as above.