Rajpattie Thakur, in her capacity as Executrix of the Will of Dolarie Thahkur, a.k.a Dolarie Takur v Deodat Ori

JurisdictionCaribbean States
CourtCaribbean Court of Justice (Appellate Jurisdiction)
JudgeWit,Hayton,Anderson,Rajnauth-Lee,Barrow,Mr. Justice Wit
Judgment Date20 Jun 2018
Neutral Citation[2018] CCJ 16 AJ
Docket NumberCCJ Appeal No. GYCV2017/011

[2018] CCJ 16 (AJ)

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

Before The Honourables

Mr. Justice Jacob Wit

Mr. Justice David Hayton

Mr. Justice Winston Anderson

Mme. Justice Maureen Rajnauth-Lee

Mr. Justice Denys Barrow

CCJ Appeal No. GYCV2017/011

Guyana Civil Appeal No. 93 of 2008

Between
Rajpattie Thakur, in her capacity As Executrix of the Will of Dolarie Thahkur, a.k.a Dolarie Takur
Appellant
and
Deodat Ori
Respondent
Appearances:

Mr. Chandrapratesh Satram, Mr. Roopnarine Satram, Mr. Bindra Dolsingh and Mr. Visal Satram for the Appellant

Mr. Mohabir Anil Nandlal and Mr. Manoj Narayan for the Respondent

JUDGMENT of The Honourable Justices Wit, Hayton, Anderson, Rajnauth-LeeandBarrow

Delivered by The Honourable Mr. Justice Wit on the 20 th day of June, 2018

Introduction
1

Tucked away in one of the few deeply entrenched provisions of the Constitution of Guyana, section 18, one can find amid a multitude of legal and technical rules, a little philosophical gem of Lockean stature: “Land is for social use and must go to the tiller.” This, according to the Constitution, is one of the principles and bases of the political, economic and social system of Guyana. Although not classified as a fundamental right, the principle, one assumes, could have some bearing 1 on Guyana's land law, especially in matters of acquisitive prescription. This appeal, it would appear, deals with such prescription and a tiller named Bissoon Thakur. Bissoon owned and resided at Lot 8 of Plantation Mon Desir, Canal No. 2, West Bank Demerara with his wife and children. The land with which this appeal is concerned is situated at the adjoining sublots, 7A, 7B, 7C and 7D (‘the land’) and was occupied and cultivated by Bissoon and his family for over forty years.

2

The Appellant in this matter is Bissoon's daughter, Rajpattie Thakur. She is seeking a Declaration of Title in her capacity as executrix of the Will of her mother, Dolarie Thakur (‘Dolarie’) who died in 2003. Bissoon died in 1991 and Dolarie was the sole beneficiary of his estate.

Factual Background
3

As with all matters concerning adverse possession, the facts are crucial to the courts' determination. This case is no different and in summary, the facts are as follows. Sometime in the 1970s, Bissoon went into occupation of the land with the permission of Prince Maison, the titular owner of the land at that time. Bissoon planted the land with various crops without interruption until 1982 when it was sold at execution sale to Basil Basdeo (‘Basdeo’) for non-payment of rates and taxes. Following the sale, Basdeo obtained Transport No. 1003 of 1982.

4

That same year, on realization of the Thakurs' occupation, Basdeo threatened Bissoon with legal action for trespass. Bissoon ignored the threat and remained in occupation but sought assistance from local bodies in an effort to remain on the land. On 12 December 1983, he wrote a letter to the local Authority expressing concerns about the sale, particularly as it

related to his crops which he claimed were valued at $25,000. In the letter, he explained that he obtained permission to work the land from Prince Maison in 1972 and had since obtained further permission to continue to occupy from his wife, Pamela Maison as Prince Maison had left the jurisdiction. He claimed that he had occupied the land on the basis that he would eventually purchase it as promised by Prince Maison. The letter also revealed that, with knowledge of the sale, he sought to pay rates and taxes, though this effort was futile. On 10 April 1984, Bissoon wrote a second letter to the Ombudsman in which he attacked the basis of the sale and alleged corruption. He claimed that Basdeo and Mr. Persaud, the village overseer responsible for selling the land to him, had a personal relationship and that the sale was not valid. He also reiterated that his entry onto the land in 1972 was permissive and that he had crops valued at $25,000 on that land. He also acknowledged that Basdeo served him with a letter threatening legal action for trespass.
5

Basdeo's threat to sue never materialized and Bissoon remained on the land peaceably until Basdeo sold it to the Respondent, Deodat Ori on 2 April 1997. The Respondent subsequently obtained Transport No. 1620 of 1997. He proceeded on to the land on 15 June 1997, and found Jaipaul, the Appellant's brother, planting agricultural produce. Jaipaul was asked to vacate the land on that day and then again in September 1997. After he refused, a series of actions with respect to the land ensued.

Procedural History
6

As with the factual background recited above, the procedural background is equally important to the disposition of this matter. No less than four matters were filed in relation to the ownership of the land. The first matter filed was High Court Action No. 5042/1997 (‘the First High Court Action’) instituted by Basdeo and the Respondent for trespass in 1997. This action was filed solely against Jaipaul. The status of this matter is unclear from the record but in paragraph 12 of the Respondent's Affidavit in Support of Opposition filed in 2003, he deposed that ‘ at the hearing of the aforesaid Action the Honourable Court might deemed (sic) same as being abandoned and incapable of being revived because of some procedural defects in the said Action’.

7

Later that year, the Appellant and Jaipaul instituted High Court Action No. 5831/1997 (‘the Second High Court Action’) where they sought a declaration that they were legally entitled to farm on the land without let or hindrance from anyone. The Appellant withdrew this claim on 11 June 2007.

8

In 2000, the Appellant and Jaipaul filed a petition, Petition No.233-P/2000 (‘the First Petition’), where they sought a Declaration of Title by prescription in their capacity as Administratrix Ad Litem of their father's estate. However, after the Appellant was cross-examined, she sought and obtained leave to withdraw and discontinue in January 2003.

9

In the matter to which this appeal relates, Petition No.280-P/2003 (‘the Second Petition) the Appellant sought a Declaration of Title personally and in her capacity as executrix of Dolarie's estate.

Commissioner of Title Proceedings
10

The Second Petition was based on the family's joint occupation and cultivation of the land. The Appellant claimed that her parents commenced occupation and possession in 1982 and on her father's death in 1991, her mother continued occupation and ownership. After her death, this was continued by the Appellant and Jaipaul on behalf of their mother's estate. Evidence of possession was presented in the petition and at trial. The Appellant detailed the way in which each plot of land was used and cultivated from the 1970s to 1997 when the land was sold to the Respondent. She gave evidence that her family cleared the land of trees and bushes, dug drains and trenches, made dams and built a large strong bridge from the property to the road. They also cultivated the land with sugar cane, pineapples, coconut trees and a wide assortment of crops and reared cattle and pigs as well.

11

Her evidence was supported by two witnesses, a neighbour, Ashok Sijore and Pamela Maison. Sijore, who lived on the lot south of the land from 1989, swore an affidavit in which he stated that Bissoon was not active when he moved to his lot but he saw the children and Dolarie working the land. He swore that this continued after Dolarie's death and he never saw anyone but the Thakurs carry out any cultivation or other acts of occupation or ownership on the land. Pamela Maison admitted under cross examination, that although she never witnessed Bissoon planting the land, she saw crops on it and that each time Bissoon visited her home, he would bring produce for her and her husband.

12

The Respondent's evidence was that after receiving transport, he visited the property with Basdeo and saw there was some cultivation on the land including trees and different greens but no crops. He also described an altercation with the Appellant in which she sought to prevent him from ploughing the land. He suffered a broken finger as a result and filed criminal charges. He also testified that after the altercation, an injunction was served on him to restrain him from ploughing and trespassing on the land. Nazim Hussain, a neighbour who lived 25 metres away, gave evidence on the Respondent's behalf. His evidence was contradictory. He testified that he never observed any cultivation on the land prior to 1997 but stated under cross examination, that he observed cassava there. He attested to seeing the Respondent weed the land and stated that he ploughed the land once but never returned after the altercation with the Appellant who had devised ways to prevent him from going on to the land.

13

Rooplall J found the Appellant to be an honest person and accepted her testimony as truthful and deemed her a credible witness. In his view, she proved on a balance of probabilities that her father and then her mother were in possession of the land for the statutorily required period with Dolarie continuing possession after her husband's death in 1991 until her own death in 2003. Rooplall J held that Bissoon commenced occupation of the land as a result of the permission or licence of Prince Maison but that permission came to an end when transport was passed to Basdeo in 1982. As a result, from 9 August 1982, Prince Maison had no authority to permit anyone to use the land and Bissoon was in occupation without the permission or licence of anyone. On those facts, Bissoon would have acquired a good possessory title by 10 August 1994 but due to his death in June 1991, he had only acquired nine years. However, as he had accepted the evidence that Dolarie took control of the land following his death, Rooplall J still found that the required twelve-year period was satisfied on 10 August 1994.

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