Rajpattie Thakur v Deodat Ori

JurisdictionCaribbean States
JudgeWit, J.
Judgment Date20 June 2018
CourtCaribbean Court of Justice
Docket NumberCCJ Appeal No. 93 of 2008
Date20 June 2018

Caribbean Court of Justice

Wit, J.CCJ.; Hayton, J.CCJ.; Anderson, J.CCJ.; Rajnauth-Lee, J.CCJ.; Barrow, J.CCJ.

CCJ Appeal No. 93 of 2008

Rajpattie Thakur
and
Deodat Ori
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.

Property law — Possession of land — Adverse possession — Whether the Court of appeal should have interfered with the finding that the appellant was a credible witness — Non-disclosure — Probate — Whether an injunction was granted to prevent the respondent from entering the land — Whether the appellant is able to establish that her father occupied and possessed the land aversely — Whether the appellant's family held peaceable occupation and possession of the land for the required period — Law on prescriptive title — Sections 18 and 141 of the Constitution — Bisnauth v. Shewprashad [2009] CCJ 8 (AJ) — Ramdehol v. Ramdehol [2017] CCJ 14Sapphire Dawn Trading 42 BK v. De Klerk and others (693/2008) [2009] ZAFSHC 11.

JUDGMENT SUMMARY
1

“Land is for social use and must go to the tiller” — this entrenched provision is tucked away in section 18 of the Constitution of Guyana and though not a fundamental right, it may have some bearing on Guyana's land law, particularly in matters of acquisitive prescription. Bissoon Thakur (‘Bissoon’) was the tiller of land adjoining his family lot at Plantation Mon Desir, Canal No. 2, West Bank Demerara. He and his family cultivated and planted the land for over forty years. 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.

2

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 cleared and prepared the land and planted it with various crops without interruption until 1982 when it was sold at an execution sale to Basil Basdeo (‘Basdeo’) for non-payment of rates and taxes. Following the sale, Basdeo obtained Transport No. 1003 of 1982 and 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. He wrote a letter to the local Authority on 12 December 1983 and to the Ombudsman on 10 April 1984. 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 who obtained Transport No. 1620 of 1997. Ori 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. Two High Court Actions were instituted in 1997: one by Basdeo and the respondent against Jaipaul for trespass and the other by the appellant and Jaipaul, where they sought a declaration that they were legally entitled to farm on the land without let or hindrance from anyone. The appellant and Jaipaul filed a petition for prescriptive title in 2000, which was withdrawn, and the petition to which this appeal relates was filed in 2003.

3

At the Commissioner of Title proceedings, Rooplall, J. found the appellant to be a credible witness and held that 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. The Court of Appeal disagreed with Rooplall, J. that an intention to possession was proved but did not decide the appeal on this point. Instead, that Court agreed with the submissions of the respondent that there were false disclosures and non-disclosures of facts material to the petition which were grave and ought to have been fatal to the petition. In the Court's view, they went to the root of the matter and were material to the relief claimed.

4

On appeal to the Caribbean Court of Justice (‘CCJ’), the respondent sought to persuade the CCJ to uphold the Court of Appeal's finding that the non/false disclosures were fatal to the appellant's petition. These non/false disclosures included the failure to disclose an injunction to the Court, the failure to disclose that there was an earlier petition filed in respect of this land and the failure to mention Dolarie Thakur in previous proceedings. After a close examination of the record, the CCJ found that the appellant did not seek to mislead the Court. Her actions were largely influenced by her ignorance of the law and the legal or procedural requirements needed to acquire prescriptive title. The Court also noted that had the Court of Appeal carefully analysed the record in respect of these arguments, the outcome of this case would have been different.

5

The Court then considered whether the appellant was able to establish that her father occupied and possessed the land adversely from Basdeo from 1982 until his death in 1991. The Court held that there ‘was more than enough evidence on record to support factual possession of the land at all material times’. As to establishing an intention to possess, the Court felt it prudent to make a distinction between the concept of animus possidendi, as it had been developed in the English common law and largely followed in Guyana and the animus domini, an intention to hold a property as his own, a concept unique to the Roman Dutch land law system upon which Guyanese land law is based. The Court pointed out that while those of animus domini must, of necessity, have the animus possidendi, not every occupier who has the intention to possess also has the intention to own.

6

As to the effect of this distinction on the instant matter, the Court first cautioned against applying too a wide concept of the animus possidendi in Guyanese land law. The Court then held that the most devastating facts for the appellant's case would be that the appellant's father (initially) kept acknowledging Prince Maison as the owner of the land even after being notified that Basdeo was the new paper owner. Additionally, that in his letter to the local Authority in December 1983 he indicated that he was in possession of the land in the hope and with the mere intention of becoming its owner. In the Court's view, this was fatal to a finding of both animus domini and animus possidendi and brought into question Rooplall, J.'s finding that time started running in Bissoon's favour from 9 August 1982. In the Court's view, Bissoon's letter to the Ombudsman on 10 April 1984, however, illustrated a state of mind conducive to an intention to possess. By that time, Bissoon had become a defiant occupant, realising that the Maison's had lost their property but refusing to acknowledge Basdeo's title and remaining on the land with his family even after a threat of legal action. The CCJ further held that although there was nothing about Dolarie's state of mind on record, it cannot be assumed that she had an intention to surrender the land and given the factual background it could be solidly inferred that she had the required intention to hold and use the land as her own. As such, the Court held that by April 1996, the Thakur family held peaceable occupation and possession of the land for the required prescription period of 12 years.

7

Before disposing of the appeal, the Court briefly addressed the respondent's concern ‘that the law of prescriptive title was being ridden like an unruly horse’. The Court reiterated its view from Bisnauth v. Shewprashad [ (2009) CCJ 8 (AJ) at [53].] that protection of property rights was of the utmost importance, but it has always been subjected to certain exceptions such as adverse possession. The Court noted that that is the reason the law requires clear and convincing evidence to support a claim for prescriptive title and that there was evidence of the sufficient quality in this appeal. Under these circumstances, the Court said, using the words of section 18 of the Constitution “the land must go to the tiller.”

8

The appeal was allowed. The order of the Court of Appeal was set aside and the order of the Commissioner of Title dated 14 July 2008, granting a declaration of title in favour of the appellant in respect of said land was reinstated. The Court also awarded basic costs for two attorneys to the appellant.

INTRODUCTION
Wit, J.
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 [See Section 39(1) of the Constitution] 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...

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