Attorney General v McDoom

• Jurisdiction: Caribbean States
• Judge: Hallinan, C.J.,Lewis, J.,Marnan, J.,Jenkins, L.J.
• Judgment Date: 13 June 1960
• Court: Federal Supreme Court (West Indies)
• Date: 13 June 1960

Federal Supreme Court

Hallinan, C.J. (Ag.);

Lewis, J.;

Marnan, J.

Attorney General

and

McDoom

S. S. Ramphal, Solicitor-General, and Dr. F. H. W. Ramsahoye for the appellant.

J. H. S. Elliott, Q.C., for the respondents.

Real property - Immovable property — Crown lands-Licence to occupy second and extra depths during Her Majesty's pleasure-Interest created — Whether contractual or proprietory — Whether terminable by Crown at will or for cause only-Condition as to payment of nominal rent in advance-Rent in arrears seven weeks-Licence revoked without previous demand for rent-Validity of revocation-Crown Lands Ordinance, Cap. 175, s. 14.

Hallinan, C.J.

1 The brother and father of the plaintiffs-respondents bought the Plantation Blankenburg, together with the right,, title and interest in the second and extra depths thereto, at a public auction in September, 1950. He died the next month. The estate of the, deceased had trouble in financing the purchase and there was some opposition to the transfer by the brother of the former owner. Finally, transport and mortgage were passed on the 4th June, 1953.

2 The estate is described as “the abandoned Sugar Plantation or Estate of Blankenburg, cum annexis, situate on the west coast of the county of Demerara”. The first depth had a frontage of 200 roods on the river and an area of 500 acres. The document of title to the second and extra depths is a licence granted by the Governor on the 1st April, 1881, (referred to in this judgment as Licence 18). The second and extra depths contained 748.75 acres. These depths were transferred to the plaintiffs-respondents in their own names and not as proprietors of the Plantation by a transfer of the 1st February, 1955.

3 The Licence was given to the proprietors of Plantation Blankenburg, their heirs and assigns, during Her Majesty's pleasure, to improve and occupy the land, subject to the three following conditions: first, to pay a rent of $27.96 a year, payable in advance on the 1st of April each year; secondly, on pain of forfeiture to cultivate the land subject to the Licence and not to alienate or transfer it without the Governor's permission; and thirdly, that the land, subject to the Licence, should be subject to the laws and regulations respecting roads and bridges. The concluding paragraph of the Licence is as follows:-

“And on compliance with the foregoing terms and on performance of the conditions hereinbefore expressed, I do hereby warrant and assure to the said grantees, their heirs and assigns, the full occupancy and possession of the said tracts of Crown land during Her Majesty's pleasure”.

4 For many years prior to the transfer of Licence 18 to the plaintiffs respondents, the greater part of the second and extra depths had been mainly under rice cultivation let out to small farmers. In July, 1955, the plaintiffs-respondents agreed to sell 194 acres of this land and on the 2nd August, Mr. Cole, the Commissioner of Lands and Mines, told the plaintiffs-respondents in writing that they ought to apply to his department for permission to sub-divide and give particulars of the terms and conditions of sale. This the plaintiffs-respondents did on the 10th September. No reply was received from the Commissioner of Lands and Mines until, under cover of a letter of the 28th May, 1956, the Commissioner sent the plaintiffs-respondents an instrument made by the Governor on the 19th May revoking Licence 18. The most important part of the revocation reads as follows:-

“AND WHEREAS the conditions of the said Licence are not being fulfilled: NOW THEREFORE in pursuance of the powers vested in me under the Crown Lands Ordinance and all other powers me in that behalf enabling, I do hereby revoke…”.

5 In answer to the plaintiffs-respondents' query as to what conditions had not been fulfilled, the Commissioner replied on the 19th June that “the rent payable in advance on the 1st April last has not been paid, and in that arrangements had been made for the cultivation of the lands included in the Licence which precludes them from being cultivated as second and extra depths for Plantation Blankenburg”. The Crown has not sought to establish that there had been a breach of the conditions regarding cultivation; the sole condition for breach for which Licence 18 was revoked has been the breach of the condition as to payment of rent.

6 The plaintiffs-respondents have brought this action claiming the following declarations: first, that they are the absolute owners of the second and extra depths; secondly, that they are not in breach of any condition of the Licence or, alternatively, that such breach has been waived and cannot be relied on by reason of estoppel; thirdly, that the document purporting to revoke the Licence was ineffective for that purpose. Alternative to these declarations, the plaintiffs-respondents asked for relief against forfeiture of the Licence. The Crown in its defence contends that the Governor was competent to revoke the Licence and that it was, in fact, properly revoked; moreover, the plaintiffs-respondents were not entitled to relief against forfeiture.

7 The lengthy and able arguments which we have heard in this case can conveniently be discussed under two main heads: first, what are the nature of the rights and obligations the plaintiffs-respondents acquired and undertook on the transfer of Licence 18 to them; secondly, assuming that it was competent for the Governor to revoke the Licence for a breach of the condition, has a breach occurred in such circumstances as permit of revocation; and, if so, were the plaintiffs-respondents entitled to relief against forfeiture.

8 The history of the title to the second and extra depths of Plantation Blankenburg falls into two periods-that prior to the granting of Licence 18 in 1881, in which period the Dutch Regulations of 1792 and the Governor's Regulations of 1835 are the most important documents; and secondly, the period after 1881 when the Ordinance of 1873, dealing with Crown lands, was replaced by other enactments which, to the extent indicated later in this judgment, are applicable to Licence 18.

9 The States General of Holland granted a charter to the West India Company in 1674 and this was extended to Demerara in 1745. There is in evidence a resolution of the West India Company of 1773 which sets out their policy for granting land on such terms as would further the development of the country. The grantee was required to build a house and to cultivate the land, and, if he did not do so, it would revert to the Company. Abandoned or deserted land would, after the publication of certain notices. be seized by the Company. The first instrument dealing with Plantation Blankenburg that has been discovered is a transport, No. 13 of 1774. An early example of the grant of a second depth to the proprietor of a plantation has been admitted in evidence; this is dated 1790. It is there stated that the directors of the company “do hereby grant and permit to A.B….to take and have in possession the second depth of the land in the rear of the plantation called Versailles… properly to cultivate and plant the aforesaid land …to have there built, a good and substantial house, without being allowed to sell or alienate the aforesaid without our knowledge…”. The right of the company to take wood was reserved and the grantee should not molest or ill-treat free Indians or traders. There is also in evidence a plan dated 1792; which shows that the second depths in plantations very near Blankenburg had been granted. Blankenburg is number 12 on the plan and second depths are shown annexed to the plantations numbered 14, 15 and 16. A transfer of Plantation Blankenburg was made by transport No. 144 of 5th December, 1828, where the right of the owners was transferred “cum annexis”. I think it is a fair inference that the second and, possibly an extra depth, of Plantation Blankenburg was cultivated in conjunction with the Plantation long before Licence 18 was issued in 1881.

10 In 1791 the charter of the West India Company expired and the States General of Holland took over the administration of the country. Regulations were made on the 24th July, 1792, regarding licences and grants of land. No one was to trespass on land “unless he shall have first obtained a licence or deed of grant from the Council of Colonies”. I do not think that at this stage there was any distinction between a licence or a deed of grant. These Regulations are a very important document and I shall later refer to their provisions and compare them with those in Licence 18.

11 In 1803 the country became a British Colony but by the Articles of Capitulation the laws and usages of the Colony were to remain in force; in other words, the old laws of Holland continued.

12 A notice issued by the Government in 1826 and directed to persons who “by the construction of the grants of the lands they hold, may have extended their cultivation on the ungranted lands adjoining or near to their estates”, were notified that they should apply for licences of occupation “to serve until a more regular form of grant should be determined on by His Majesty's Government”. For many years thereafter, licences of occupancy were issued by the Crown pursuant to this notice. In 1835, the Government issued another notice setting out the manner in which the Governor would make grants of land or give licences for its occupation “founded on His Excellency's orders from His Majesty's Government and the existing Regulations”. No grants of more than 100 acres could be made, but by paragraph 6 of the notice, proprietors or planters in possession of estates under article 5 of the Regulations of 1792, were entitled to an additional depth. It was further stated that “so long as an estate is in cultivation, and there is the most distant chance of the second depth being required by the proprietor...