Ramdass v Jairam et Al

• Jurisdiction: Caribbean States
• Judge: Bernard, J.A.
• Judgment Date: 22 August 2008
• Court: Caribbean Court of Justice
• Docket Number: CCJ Appeal No CV 3 of 2006; GY Civil Appeal No. 90 of 2000
• Date: 22 August 2008

Caribbean Court of Justice

Bastide, P.; Nelson, J.A.; Pollard, J.A.; Saunders, J.A.; Bernard, J.A.; Wit, J.A.; Hayton, J.A.

CCJ Appeal No CV 3 of 2006; GY Civil Appeal No. 90 of 2000

Ramdass

and

Jairam et al

Appearances:

Mr. Mohabir Anil Nandlall and Mr. Adrian Anamayah for the appellant.

Mr. Rajendra Poonai, Mr. Kashir Khan and Mr. MohamedS G F Khan appearing as amici curiae.

Real property - Agreement for sale of land — Sale to another party — Equitable interest in land not recognized in Guyana — Order for specific performance refused

Bernard, J.A.

1 The appellant, Ramdass, and the first respondent Loki, now deceased, were brother and sister. Loki inherited from her husband land situate at No. 19 Corentyne, Berbice, held under two transports, and on 18th April, 1984 she agreed to sell to her brother Ramdass three parcels of the said land comprising 36 acres for the sum of $30,000.00. The said sale was evidenced by a receipt which indicated that the purchase price had been paid in full and that Ramdass had been put into possession.

2 Shortly after the sale to Ramdass, Loki left Guyana for the United States of America and remained there for approximately one year. Ramdass having been let into possession, cultivated rice and pastured cattle on the 36 acres which he had purchased. Upon the return of Loki to Guyana, she entered into an agreement of sale on 21st March, 1986 with Ali Mohamed, now deceased, under which she sold for the sum of $125,000.00 all of the land which she had inherited from her husband including the 36 acres which she had earlier sold to Ramdass. She also agreed to give possession to Mohamed, an arrangement which was fraught with conflict as subsequent events revealed.

3 Ramdass continued his cultivation of the land he had purchased, and Mohamed sought to do the same in keeping with his agreement. This resulted in litigation when Ramdass in 1986 in action No. 444/1986 was granted an injunction by a Court restraining Mohamed from entering his portion of land. This notwithstanding, Loki passed transport to Mohamed on 5th May, 1987. Inevitably Ramdass upon discovery of this new development filed action No. 639/1987 against Loki, Mohamed and the Registrar of Deeds seeking specific performance of his agreement with Loki and revocation of Mohamed's transport.

4 Litigation between the parties continued with Loki instituting proceedings against Mohamed in 1988 for the sum of $62,500.00, being the unpaid balance of the purchase price which he seemed to have withheld even after transport had been passed to him.

JUDGMENT OF THE HIGH COURT

5 The action out of which this appeal arises (No. 639/1987) came on for hearing, and it seems that counsel agreed that the other actions would await determination of this action. The Registrar of Deeds has taken no part in these proceedings at any stage. In his pleadings Ramdass alleged that Loki and Mohamed fraudulently passed transport to Mohamed in order “to defraud” him of the property, but gave no particulars of the alleged fraud. A perusal of the record indicates that at the commencement of the hearing of the action the allegation of fraud was withdrawn by counsel for Ramdass. This having been done, counsel sought to rely on Mohamed's actual notice of Ramdass' s occupation of the land and argued that Mohamed could not be said to be a bona fide purchaser for value without notice, a claim which was never made by Mohamed. Further, he sought to persuade the trial judge that Ramdass had acquired an equitable interest in the land.

6 The trial judge found on the evidence that Loki did sell three parcels of land to Ramdass by an agreement which he held to be genuine. He also found that by virtue of section 23(1) of the Deeds Registry Act, Cap. 5:01 which is set out at [10] below, Mohamed had acquired full and absolute title to the land under the transport passed to him, the allegations of fraud having been withdrawn. Consideration was given to a range of local cases over the years which established that equitable interests in immovable property are not recognised in Guyana, and with which the trial judge agreed. Based on his findings, the trial judge refused the order for specific performance as well as the claim for a declaration that transport was wrongfully passed to Mohamed.

JUDGMENT OF THE COURT OF APPEAL

7 Ramdass appealed to the Court of Appeal which dismissed the appeal, upholding the trial judge's finding that equitable interests in immovable property are not recognised in Guyana and making reference to the Civil Law of Guyana Act, Cap. 6:01 as well as decided cases on the subject.

8 Following are the relevant provisions of section 3 of the Act:

• “(b) the common law of Guyana shall be the common law of England as at the date aforesaid including therewith the doctrines of equity as then administered or at any time hereafter administered by the Courts of justice in England, and the High Court shall administer the doctrines of equity in the same manner as the High Court of Justice in England administers them at the date aforesaid or at any time hereafter;

• (c) the English common law of real property shall not apply to immovable property in Guyana;

• (d) there shall be as heretofore one common law for both immovable and movable property, and all questions relating to immovable property within Guyana and to movable property subject to the law of Guyana shall be adjudged, determined, construed and enforced, as far as possible, according to the principles of the common law of England applicable to personal property:

Provided that:-

• (i) immovable property may be held as heretofore in full ownership, which shall be the only ownership of immovable property recognised by the common law and shall not be subject to any rule of succession by primogeniture or preference of males to females, or to any other incident attached to land tenure or to estates in lands in England and not attached to personal property in England;

• (ii) the law and practice relating to conventional mortgages or hypothecs of movable or immovable property, and to easements, profits a prendre, or real servitudes, and the right of opposition in the case of both transports and mortgages, shall be the law and practice now administered in those matters by the Supreme Court;

• (iii) the relief by judgment for specific performance shall be granted in the case of immovable property on the same principles on which it is granted in England in the case of contracts relating to land or to interests in land.”

9 The Court also found that although Ramdass would have been entitled to an order for specific performance against Loki, this could not be granted, since the transport passed by Loki to Mohamed conveyed to him full and absolute title of the land, which could only be set aside by fraud specifically pleaded and proved, and in this case allegations of fraud had been withdrawn by Mohamed's counsel.

10 Although not expressly so stated in the judgment, the Court must have had in mind section 23(1) of the Deeds Registry Act, Cap. 5:01 which is to this effect:

“From and after the 1st January, 1920, every transport of immovable property other than a judicial sale transport shall vest in the transferee the full and absolute title to the immovable property or to the rights and interest therein described in that transport, subject to:-

• (a) statutory claims;

• (b) registered incumbrances;

• (c) registered interests;

• (d) registered leases

Provided that any transport …… obtained by fraud shall be liable in the hands of all parties or privies to the fraud to be declared void by the Court in any action brought within twelve months after the discovery of the fraud……”

11 Leave was sought and granted by the Court of Appeal to appeal to the Caribbean Court of Justice. Before the delivery of judgment in the Court of Appeal the first respondent, Loki, died. The second respondent, Mohamed, died during the pendency of the hearing in the High Court, and had been replaced by his son Asaf Ali Mohamed who also died. Asaf's wife, Amina Mohamed, was then appointed to represent the estate of her father-in-law, Ali Mohamed. On an application by the appellant, leave was granted by the Caribbean Court of Justice for one Salim Jairam, a clerk in the office of the attorney appearing for the appellant, to be substituted for Loki, deceased, for the purposes of the appeal.

12 Before the hearing of this appeal commenced it was ascertained that none of the respondents was going to be represented in a case in which important points of law were to be considered. The Court invited the Guyana Bar Association to make available one of its members to appear as amicus curiae. Commendably the Bar Association responded and three counsel including the Association's President appeared at the hearing.

ISSUES TO BE DETERMINED

13 In summary, this appeal involves issues concerning the ongoing debate of whether equitable interests in land in Guyana are recognised or can be acquired, having regard to the development of the law of immovable property in Guyana, particularly in relation to a purchaser who is put in possession under an agreement of sale, and the effect...