Bisnauth v Shewprashad and Bisnauth

CourtCaribbean Court of Justice
Docket NumberCCJ Appeal No. CV 12 of 2007; GY Civil Appeal No. 35 of 2002
JudgeWit, J.A.
Judgment Date30 Jun 2009
JurisdictionCaribbean States

Caribbean Court of Justice

Nelson, J.A.; Pollard, J.A.; Bernard, J.A.; Wit, J.A.; Hayton, J.A.

CCJ Appeal No. CV 12 of 2007; GY Civil Appeal No. 35 of 2002

Bisnauth
and
Shewprashad and Bisnauth
Appearances

Mr. Roopnarine Satram and Mr. Chandraprakesh Satram for the appellant.

Mr. Khemraj Ramjattan and Mr. Neil Persram for the respondents.

Real property - Ownership — Prescription — Whether the estate of the deceased had acquired absolute title to several parcels of land.

Wit, J.A.
1

The genesis of this appeal can be traced to the occupation of four lots of land situate at Lot 68 Village, Corentyne, Berbice, by Lackram Bisnauth (hereinafter “Lackram”). He sought to obtain ownership of these lots by prescription, and in December 1998 filed a petition for a declaration of title. Sadly, he died in January 2000. The respondents entered an opposition to the petition, and after a contested hearing in the Berbice High Court, on 23rd April, 2002 the Commissioner of Title and Judge of the Land Court dismissed the opposition to the petition and declared that the estate of Lackram had acquired absolute title to the said lots of land, and that Edward Jonathan, the appellant, in his capacity as executor of the estate of the deceased, was entitled to a conveyance thereof.

2

The respondents filed a notice of appeal against the decision of the Commissioner of Title, and on 13th June, 2007 the Guyana Court of Appeal allowed the appeal. On 10th October, 2007 the Court of Appeal granted leave to appeal to this Court and on 24th October, 2007, a notice of appeal was filed in which the appellant challenged the findings of the Court of Appeal, inter alia, in relation to his possession of the land for the statutory period in the absence of any evidence that he had abandoned possession of the property.

3

On 3rd April, 2009 this Court dismissed the appeal after hearing submissions from Counsel for the appellant and for the respondent. We undertook to deliver reasons for the decision, and now proceed to do so.

BACKGROUND
4

It is common ground that in 1957 Lackram was allowed into possession by his mother, Janki Hanoman, (hereinafter “Janki”) the title holder, of part of lot 40 on which he constructed a wooden house. He occupied the house with his wife Arlene Bisnauth and their eight children. In or about 1960 he entered into possession of lots 37, 38 and 39 with his mother's permission. Lackram alleged in his petition that his occupation of the said property was “in open adverse (sic) over the whole of the said property and has exercised and still continues all acts of full ownership over same since the year 1957 unto the present time, nec vi, nec clam, nec precario” and that he “enjoyed and still continues to enjoy the peaceful and quiet possession and occupation of the said property …” Such acts of ownership as particularised in his petition, Lackram claimed to have carried out on the lands during the period 1957 to 1999 “free from any interruption by any person or persons whomsoever.”

5

However, on the basis of the testimony of Arlene Bisnauth, wife of Lackram, found to be credible by the learned judge of the Land Court, it was established that between 1957 and 1981 Lackram paid to Janki yearly an amount of $50 when he occupied part of lot 40 and $100 yearly when he extended his occupation to lots 37, 38 and 39. It is noteworthy that nowhere in the pleadings of either party is there any claim that Lackram paid rent or made any payments for the lands. These lands were transported to the respondents by Janki in 1996 when Lackram allegedly refused to buy them. Lackram paid the above-mentioned amounts to Janki until 1981 when he took his wife and the majority of his children to the United States of America, and on a return visit in 1982 took his mother, Janki, with him. Lackram's three sons remained in the house until 1983 when he returned for them. Thereafter his niece, Venus occupied the house.

6

On one of the periodic visits which Lackram made to Guyana he met and became friendly with a young lady named Savitri Persaud who testified on behalf of the respondents, but whom the trial judge found to be credible. She claimed that they met in March 1984 and lived together for a few months in his house on lot 40. When he left she continued to reside there until 1994 during which time he returned on several occasions and stayed there with her. In 1996 the house which was constructed by Lackram in 1957 was demolished and replaced by another house which he bought. He and Savitri continued to cohabit in the new house until 1998. In 1999 he became ill and was taken back to the U.S.A. where he died on 15' January, 2000. In 1998 he had instituted proceedings in the Land Court for a declaration of prescriptive title to the lands which had been transported by Janki to the respondents in 1996.

ISSUES
(i) WAS THERE AN INTENTION BY JANKI AND LACKRAM TO ENTER INTO LEGAL RELATIONS BETWEEN 1957 AND 1981?
7

The learned trial judge of the Land Court found “as a fact from the evidence adduced that Janki Hanoman, the mother of the Petitioner Lackram Bisnauth, had ceased to exercise any or all of her possessory rights to the said land as from the year 1982 when she migrated to the U.S.A. and that any tenancy at will which may have existed prior to that date had come to an end.”

8

The Court of Appeal, in allowing the appeal and overruling the decision of the trial judge, found that Lackram was a tenant from year to year and that the tenancy was determined by implication when Lackram and Janki emigrated to the U.S.A. in 1982 “and possession of the property reverted to the title holder,” Janki. The Court of Appeal further held “(t)here appears to be no relationship of landlord and tenant from 1982 between the petitioner and title holder despite the fact the Commissioner found that the respondent was in exclusive possession of the property when the respondent abandoned the tenancy.”

9

In our opinion the courts below fell into error in finding that there was a tenancy between Janki and Lackram during 1957 and 1981. Indeed, on the basis of the facts established by evidence, the ordinary requirements of a tenancy were palpably lacking. The traditional distinction between a tenancy and a licence of land lies in the grant of land for a period at a rent with exclusive possession as opposed to mere permission to be on the land. Admittedly Lackram's petition alleged no tenancy, but nowhere in the said petition is there any claim by him that his occupancy and possession of the property were exclusive. In this connection it is important to bear in mind that a tenancy as defined in section 3 of the Landlord and Tenant Act, Cap. 61:01 stipulates “exclusive possession” as a requirement of such an arrangement. Section 3(2) of this enactment provides:

“A tenancy from year to year is a holding of land or buildings under a contract, express or implied, for the exclusive possession thereof for a term which may be determined at the end of the first year or any subsequent year of the tenancy either by the landlord or the tenant by a regular notice to quit.”

Similarly, in sections 3(1), (3) and (4) the requirement of exclusive possession was posited for other types of tenancies.

10

However, the test of exclusive possession is not determinative of a tenancy even where it is coupled with the payment of rent if there is no clear intention by the parties to create legal relations. ( Booker v. Palmer [1942] 2 All E.R. 674; Errington v. Errington & Woods [1952] 1 K.B., 290; Cobb v. Lane [1952] 1 All E.R. 1199; Abbeyfield (Harpenden) Society Ltd v. Woods [1968] 1 W.L.R., 374; Shell Mex & B.P. Ltd v. Manchester Garages Ltd [1971] 1 All E.R., 841; Edwards v. Brathwaite (1978) 32 W.I.R. 85; Street v. Mountford [1985] A.C. 809). In Romany v. Romany (1972) 21 W.I.R. 491 at 494 Georges, J.A. in the Court of Appeal of Trinidad and Tobago, had this to say:

“Recent authority makes it clear that in family situations … where one member helps another in a period of difficulty over accommodation there is usually no intention to create legal relationships, so that there can be no tenancy at will but merely a licence.”

Similar sentiments were expressed by Lord Denning in Isaac v. Hotel de Paris Ltd., (1960) 1 W.I.R. 23 who found that:

“the circumstances and conduct of the parties show that all that was intended was that the defendant should have a personal privilege of running a night bar on the premises with no interest in the land at all.”

11

By analogous reasoning it does appear that Lackram, the eldest son of Janki, was allowed to construct a house on part of lot 40 for himself and family after he was married as a personal privilege which incurred no transfer of an interest in the land. Indeed, the familial relationship which Lackram never disclosed in his petition raises a presumption of an intention not to create legal relations. The relationship supported inferentially the status of licensor and licensee, and appears to invoke unequivocally dicta of Lord Greene, M.R. in Booker v Palmer (supra) to the effect that “(t)here is one golden rule … that the law does not impute an intention to enter into legal relationships where the relevant circumstances and the conduct of the parties negative any such intention.”

12

If Lackram and Janki had considered the arrangement to be a tenancy, it is reasonable to assume that there could have been some evidence of payment of rent. Equally there is no evidence that Lackram paid rates on the land except for one receipt of dubious legitimacy issued by the Neighbourhood Democratic Council in 1994. In any event, the payment of rates is not conclusive evidence of possession or ownership. (See Bazil and Another v. Wharton (1992) 47 W.I.R. 238).

(ii) DID LACKRAM CONTINUE IN POSSESSION AS LICENSEE WITH JANKI'S EXPRESS OR IMPLIED CONSENT AFTER 1981; IF NOT, WAS HE IN ADVERSE POSSESSION TO HER TITLE BETWEEN 1982 AND 1999?
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