David Lachana A/C Lachana Sadonel Devi Lachana Appellants v Cooblal Arjune Tara Ajune Respondents

JurisdictionCaribbean States
CourtCaribbean Court of Justice (Appellate Jurisdiction)
JudgeNelson, Pollard, Bernard, Wit, Hayton, Mr. Justice Jacob Wit
Judgment Date17 Dec 2008
Neutral Citation[2008] CCJ 12 AJ
Docket NumberCCJ Appeal No. CV 8 of 2007

[2008] CCJ 12 (AJ)

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

ON APPEAL FROM THE COURT OF APPEAL OF THE CO-OPERATIVE REPUBLIC OF GUYANA

Before

the Honourables

Mr Justice Nelson

Mr Justice Pollard

Mme Justice Bernard

Mr Justice Wit

Mr Justice Hayton

CCJ Appeal No. CV 8 of 2007

GY Civil Appeal No. 83 of 2003

Between
David Lachana A/C Lachana
Sadonel Devi Lachana
Appellants
and
Cooblal Arjune
Tara Ajune
Respondents
Appearances

Mr Roopnarine Satram, Mr Chandraprakesh SatramandMr Mahendra Satramfor the Appellants

Mr Rajendra Poonai and Mr Sohan Poonai for the Respondents

JUDGMENT of Justices Nelson, Pollard, Bernard, WitandHaytondelivered by The HonourableMr. Justice Jacob Witon the 17th day of December, 2008

Introduction
1

This matter concerns the ownership of a parcel of land on the East Coast of Demerara in the Republic of Guyana, known as “Lot ‘A’, being a portion of block 2 of the West Half of the East Half of the Plantation Quaker's Hall.” Although it is only a small piece of land (around 480 sq. m), it is extremely important to David Lachana and his wife Sadoney, the appellants in this case. David's parents had lived on this land since 1945 when he was born there. He grew up on the land and has lived there all his life. In 1965, after they were married, Sadoney joined him and she also has “lived there ever since.” Their five children were born and raised on the land. And so, in a way, it is the centre of their world.

2

When Sadoney joined David in 1965, he, his father Albert and several of his brothers and sisters were living in an old house on the property. That house was broken down in 1969 and in that same year David and Sadoney built a new one. They still live there, up to this very day.

3

Although one can understand why David and Sadoney have come to consider this parcel of land their own, they have never held title to the land. They never had a transport of it. The “paper” or “true” owners of the land are Tara Arjune, in her capacity of administratrix of the estate of her deceased husband Khemraj Arjune, and Cooblall Arjune. They are the respondents in this case. Cooblall and Tara received the transport of a parcel of land, of which lot ‘A’ is just a part, in 1982 from the former “paper owner” of the land, a certain Ramsaroop, through his representative E.S. Doobay. The transport was passed nine years after Cooblall and Khemraj had bought the land from him.

4

In 1999, David and Sadoney Lachana petitioned for a declaration of title to their little plot of land. This petition was based on the Title to Land (Prescription and Limitation) Act, Cap. 60:02 of the Laws of Guyana. Accordingly, they were required to satisfy the Court, that a) for a period of twelve years or more they had had sole, exclusive and undisturbed possession of their piece of land, b) their possession was open and adverse to the “paper owners” and c) their possession was not obtained by fraud or by some consent or agreement expressly made or given for that purpose.

5

As was to be expected, Cooblall and Tara Arjune opposed the petition and on 27 November 2003 the Commissioner of Title and Judge of the Land Court dismissed the petition. The Lachanas appealed the decision but on 13 April 2007 the appeal was dismissed by the Court of Appeal. They subsequently appealed the judgment of the Court of Appeal. This Court heard the appeal on 3 November 2008 and dismissed it with costs, stating its intention to deliver its reasons later. We now give our reasons.

The issues
6

Although the case was about much more, it ultimately boiled down to two issues of fact:

  • (a) At what point in time did the adverse possession, if there ever was one, begin: in 1969, as the Lachanas initially deposed, or in 1979, as they later deposed (but thereafter sought to qualify)?

  • (b) From 1982 to 1997 were the Lachanas rent-paying tenants of Cooblall and Tara Arjune, the holders of the “paper title”, or were they in adverse possession?

7

Clearly, if it could be established that the Lachanas had been paying rent for their lot in the period 1982 to 1997 it could not be said that their possession was adverse to the Arjunes during that time. But even then, if they could prove that from 1969 to 1982 their possession of lot ‘A’ was adverse to the then “paper owner” they would have satisfied the requirement of adverse possession of at least twelve years. In that case the title of Ramsaroop would have been extinguished even before he transferred or purported to transfer the land to the Arjunes. If, however, the adverse possession began in 1979, the Lachanas would not have had a sufficient number of years of adverse possession to defeat Ramsaroop's title in which case their petition would have to fail.

8

In a well-reasoned judgment the Commissioner of Title found that the adverse possession began in 1979 and that it was more probable than not that the Lachanas had been rent-paying tenants in the period 1982 to 1997. These findings were fatal to the petition which therefore had to be dismissed.

9

In an equally well-reasoned judgment the Court of Appeal concurred in the findings of the first instance judge although it rephrased, correctly we think, the second issue. The Court of Appeal put the question thus: whether the Lachanas had sufficiently disproved the contention that they had been rent-paying tenants of the Arjunes. The Court of Appeal found they had not.

10

The decisions of the lower courts are ultimately based on these two concurrent findings of facts, the very same findings we are now asked to review. The question has been raised whether we should do so.

The practice of the Court
11

Counsel for the Arjunes referred us to the well known case of Devi v Roy1 where the Privy Council “codified” their (utter) reluctance to review the evidence for the third time where there are concurrent findings of two courts on a pure question of fact. This decision was the culmination of a long line of cases in which the Privy Council...

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