Kowsal Narine v Deonarine Natram, Ashbourne Lipton Chan and Foster Gilforn Chan
| Jurisdiction | Caribbean States |
| Judge | Rajnauth-Lee, J.CCJ.,George, J.CCJ. |
| Judgment Date | 10 May 2018 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No. GYCV2017/003; Guyana Civil Appeal No. 106 of 2006 |
| Date | 10 May 2018 |
Caribbean Court of Justice
Saunders, J.CCJ.; Hayton, J.CCJ.; Anderson, J.CCJ.; Rajnauth-Lee, J.CCJ.; Barrow, J.CCJ.
CCJ Appeal No. GYCV2017/003; Guyana Civil Appeal No. 106 of 2006
Mr. C.V Satram, Mr. R. Satram, Mr. Mahendra Satram and Mr. Visal Satram for the Appellant.
Mr. Mohabir Anil Nandlall and Mr. Manoj Narayan for the 1st Respondent.
Real property - Possession — Prescriptive title — Whether time could run for the purpose of prescriptive rights in favour of a purchaser who entered into possession with agreement but had not paid the full purchase price — Whether appellant possessed the land in his own right and acquired prescriptive title following the death of the ceased.
The Appellant, Kowsal Narine, (“Kowsal”) and the First Respondent, Deonarine Natram, (“Deonarine”) are brothers. Kowsal is the executor of the will of their father, Nateram also known as Natram (“the deceased”). In 1959, the deceased had entered into an agreement for sale to purchase all rights, title and interest in land [The trial judge noted in her judgment that the land was described in transport number 521 of 2002 – transport from the Chans to Deonarine.] comprising 5.21 acres situated at Cultivation block numbered 62 in Section C, Golden Fleece, Essequibo (“the land”) from the Second and Third Respondents, Ashbourne Chan and Foster Chan (“the Chans”) at $360.00 per acre.
The deceased paid a deposit of $100.00 and was put into possession of the land by the Chans on 4th April 1959. The balance of the purchase price was to be paid off in six years with interest running at the rate of 10% per annum. Between August 1959 and August 1965, the deceased made five payments towards the purchase price totalling $1630.00. Thereafter, no further payments were made, except for the sum of $950.00 made in 1981, by Kowsal, on the deceased's behalf.
On 30th July 1989, the deceased signed an agreement by which he gifted the land to Deonarine. By the agreement, possession of the land was to be given to Deonarine and transport passed from the deceased to Deonarine. Deonarine, however, approached the Chans and they agreed to sell the land to him for $9950.00 on the said 30th July 1989. Thereafter, Deonarine instituted claim No. 4490/1989 against Kowsal and another brother, Narine Nateram (also called Narine Natram) in which he sought damages, an injunction restraining them from working the land and an order that they yield up possession of the land. Deonarine discontinued the claim in March 1990. By the terms of his will, dated 8th May 1990, the deceased devised the land to Kowsal. In his will, the deceased stated that ‘the balance of the purchase price shall be paid by him and have transport passed to him’. The deceased died on 31st May 1991. On 21st June 2002, Deonarine obtained Transport Number 521/2002 from the Chans and on 20th August 2002, he came on to the land, burnt six bags of seed paddy and warned Kowsal not to enter the lands anymore. It was this action by Deonarine which prompted Kowsal to commence these proceedings in the High Court.
At trial, Kowsal gave evidence that he had assisted the deceased with the cultivation of the land from 1973 until 1981, when the deceased gave him exclusive possession of the land. He also testified that he paid to the deceased the sum of $75.00 per acre as rent until the deceased's death on 31st May 1991. His evidence was that he remained in exclusive possession of the land without disturbance from anyone until this action. George, J. accepted the evidence of Kowsal on all material aspects. She found that the deceased had acquired prescriptive title from 1978 on the basis that he had become a tenant at will one year after the final payment made in 1965 in accordance with section 9(1) of the Act. She found therefore that time had begun to run in the deceased's favour from 1966, one (1) year after the last payment, and that his possession crystallised into title twelve (12) years later, in 1978. The trial judge held that the deceased's failure to pay the full purchase price was not “a bar to his adverse possessory rights continuing to accrue to him”, relying on Ramlakhan v. Farouk [ [1974] 21 W.I.R. 224]. The trial judge further found that Kowsal, in his own right, had acquired prescriptive title from 1990 with time running in his favour after Deonarine discontinued the action for possession filed in 1989.
Deonarine appealed the decision of the trial judge. The principal issue on appeal was whether a purchaser of land who was put into possession by his vendor entered in adverse possession. The Court of Appeal found that the deceased was not a tenant at will but rather a purchaser under a contract of sale who was given exclusive possession pending completion of the contract. In those circumstances and given recent decisions, such a purchaser was regarded a licensee [See page 5 of the Court of Appeal judgment citing the Law of Real Property by Megarry and Wade, 6th edition, at p. 793 and Street v. Mountford (1985) A.C. 809 at pp. 826–827 per Lord Templeman]. The Court of Appeal criticized the reasoning in Ramlakhan v. Farouk as being unsound. In that case, the court held that in order for possession to be consensual within the meaning of section 3 of the Act, the agreement must be made for the purpose of user and enjoyment and not for the purpose of sale. However, in the court's view, even though the deceased's agreement with the Chans was for the purpose of sale, the pleadings supported the contention that he was “put into possession” by the Chans, so it was not unreasonable to conclude that he did so with their permission and therefore could not acquire prescriptive title.
The court also disagreed with the trial judge's finding that Kowsal had acquired prescriptive title in his own right as the evidence was not of the quality that should have satisfied the trial judge that he had the requisite intention to possess. The court concluded that, in any event, Kowsal could not succeed in his claim due to non-compliance with the Rules. The appeal was allowed and costs awarded to Deonarine agreed in the sum of $100,000.00.
There were three issues for the Court's consideration in this appeal: (i) whether time could run for the purpose of prescriptive rights in favour of a purchaser who enters into possession with the agreement of the vendor but who has not paid the full purchase price, (ii) whether Kowsal possessed the land in his own right and acquired prescriptive title following the death of the deceased and (iii) whether a litigant can obtain a declaration of title without approaching the Land Court and complying with the Rules of the High Court (Declaration of Title) (“the Rules”)?
The Court agreed with the Court of Appeal that the deceased was not a tenant at will relying on the judgment of Wit JCCJ in Bisnauth v. Shewprashad [ (2009) 79 W.I.R. 339]. In that case, he discussed ‘the fading borders between licences and tenancies at will’ and held that' there is a presumption that, in case of doubt, the relationship with the land owner and the person occupying the land with his permission should, as a rule, be categorized as a licence'. The Court endorsed this view and disagreed with the submission that paying the deposit entitled the deceased to enter into possession in his own right. Instead, the deceased's entry on to the land was on the basis of a gratuitous licence created independent of his agreement to purchase from the Chans. Thus, time could not run in his favour for the purpose of prescriptive rights until the license was terminated by the Chans or the purchase price paid in full.
The Court also analyzed the jurisprudence in Guyana as to the status of a purchaser put into possession of land by the landowner/vendor pending the full payment of the purchase price. The Court considered the judgment of Verity, J. in Gondchi v. Hurrill [ (1937) L.R.B.G. 509] which was relied on in Ramlakhan. The Court agreed with the first proposition advanced by Verity, J. that time could not run in favour of a purchaser who was put into possession with the leave of the vendor/landowner. As to the second proposition advanced by Verity, J. that where the purchaser entered into possession in furtherance of an agreement for sale, his possession was as of right and adverse to the vendor/landowner, the Court found that that was not necessarily so. In the Court's view, where a purchaser paid the full purchase price and entered into possession pursuant to an agreement for sale, he entered into possession as of right and time began to run in his favour on his entry. Where however he entered into possession under an agreement for sale, but had not paid the full purchase price, the question of whether that purchaser's possession was as of right, was, a matter of construction of the agreement for sale having regard to the circumstances of each case. It followed that the case of Ramlakhan v. Farouk was incorrectly decided to the extent that it had determined that time automatically and necessarily ran in favour of a purchaser who entered into possession under an agreement for sale, but who had not paid the full purchase price.
As to whether Kowsal acquired prescriptive title in his own right, the Court accepted his evidence and found that he had satisfied the requirements of section 3 of the Act. He had been in sole and undisturbed possession of the land since 1st June 1991 when the gratuitous licence granted by the Chans terminated upon the death of his father. The Court's finding on this issue was further supported by Deonarine's evidence that he was never in possession of the land as well as his failure to commence proceedings for the recovery of land within twelve years after Kowsal entered into possession. The...
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