Toolsie Persaud Ltd v Andrew James Investments Ltd et Al

CourtCaribbean Court of Justice
Docket NumberCCJ Appeal No CV 1 of 2007; GY Civil Appeal No. 72 of 2004
JudgeDe La Bastide, P.
Judgment Date15 Jul 2008
JurisdictionCaribbean States

Caribbean Court of Justice

de la Bastide, P.; Nelson, J.A.; Pollard, J.A.; Wit, J.A.; Hayton, J.A.

CCJ Appeal No CV 1 of 2007; GY Civil Appeal No. 72 of 2004

Toolsie Persaud Limited
and
Andrew James Investments Limited et al
Appearances:

Sir Fenton Ramsahoye SC, Mr. Anand Ramlogan and Mr. Chandraprakesh Vikash Satram for the appellant.

Mr. Ashton Chase SC and Mr. Sase Narain SC for the first respondent.

Mr. Rex H. Mc Kay SC, Mr. Neil Aubrey Boston and Mr. Hukumchand Parag for the second respondent.

Mr. Doodnauth Singh SC, Mr. Vashist Maharaj and Ms Martina Bacchus for the third respondent.

Real property - Prescription — Whether respondents' titles extinguished by adverse possession of the appellant — Appellant declared to be entitled to be registered as owner of first respondent's land — Appellant's petition in respect of rest of land of which the States was owner was dismissed.

De La Bastide, P.
1

Toolsie Persaud Limited (“the appellant”), by its petition of 21 January 1993 (“the Petition”) seeks a declaration that under the Title to Land (Prescription and Limitation) Act, Chapter 60:02 of the Laws of Guyana, (the “Limitation Act”) it has acquired title to 83.642 acres of land comprising areas ‘C’, ‘F’, ‘G’, ‘H’, ‘K’, ‘N’. ‘J’, and; ‘O’, being part of Plantation Turkeyen on the east coast of Demerara, Georgetown. It seeks to claim prescriptive title by undisturbed adverse possession of this tract of land for over twelve years, adding its own adverse possession of the land to the earlier adverse possession of the Republic of Guyana (“the State”).

2

The petition has been opposed as to areas ‘F’, ‘G’ and ‘H’ by the first respondent, Andrew James Investments Ltd, as to area ‘C’ by the second respondent, Shivlochnie Singh, and as to areas ‘K’, ‘N’. ‘J’, and ‘O’ by the Attorney General on behalf of the State. The petition went first to the Land court. On appeal a trial de novo was ordered. The trial took place before Singh, C.J. who dismissed the petition. On appeal, the order of Singh, C.J. was upheld but on different grounds. From the dismissal of its appeal the appellant now appeals to the CCJ.

3

By virtue of the Acquisition of Land for Public Purposes (Diplomatic Complex) Order 1977, No 22 of 1977, (“CAO No 22”) of 28 March 1977, followed by the Acquisition of Land for Public Purposes (Diplomatic Complex) (No 2) Order 1977, No 43 of 1977, (“CAO No 43”) of 8 June 1977, the said areas of land allegedly became vested in the State on 8 July 1977 pursuant to s. 7 of the Acquisition of Land for Public Purposes Act, Chapter 62:05 (“the Acquisition Act”). On 9 August 1977 the Registrar of Deeds annotated the property register so as to make the State appear the owner of those areas (as made clear by Kennard, J.A. on page 3 of his judgment in Civil Appeal No 53 of 1990 referred to at [8] below).

4

By an October 1987 Agreement of Sale, the State agreed to transfer to the appellant the said areas of land covered by CAO No 22 and CAO No 43. The purchase price was $2,217,100, with one third, $739,033, payable upon signing the Agreement, and the balance to be paid on the passing of the transport. Possession was to be given on signing the Agreement. Although the appellant paid the one third in October 1987, it was agreed that it would take possession later after some seasonal harvesting of the land by the National Dairy Development Programme under the auspices of the Ministry of Agriculture. It took possession when this harvesting finished in April 1988 and commenced preparatory steps for a significant housing project.

Areas ‘F’, ‘G’ and ‘H’

5

On 20 March 1989 the first respondent brought legal proceedings by way of constitutional motion against the Attorney General in which it challenged the validity of CAO No 22 and CAO No 43. It claimed that its fundamental and constitutional rights had been infringed, and a declaration that “the aforesaid property reverted and still does properly belong to the applicants and that their transports, therefore, are valid and effective”. It sought “such further and other order and declaration as to the court seems just, including the setting aside of the acquisition of the land.”

6

On 14 May 1990 Kissoon, J. upheld the challenge after examining s. 7(1) of the Acquisition Act, which is as follows.

“At the expiration of one month from the date of the order mentioned in the last preceding section or of any longer period fixed in the order, the land specified therein shall vest in the State, subject to the payment of the purchase money or of any compensation as hereinafter provided:

Provided that no land shall so vest unless and until the National Assembly has voted or agreed to vote the sum estimated to be necessary for the public work for which the land is required.”

7

Kissoon, J. held that title should not have vested in the State under s. 7(1) of the Acquisition Act because this could not have happened until the National Assembly had (as required by the proviso to s 7(1)) voted or agreed to vote the necessary funds for the proposed public works, and it had not. Thus he “ordered and declared that the acquisition by the State of the applicant's land at areas F G and H …. be set aside as being contrary to the provisions of the Acquisition… Act.” He also held that both CAOs were “ultra vires and bad” because CAO No 22 stated “The land described in the Schedule, upon which it is proposed to site a Diplomatic Complex for Foreign Missions in Guyana is hereby declared to be a public work”, and this mistake of treating “bare land”, instead of the Diplomatic Complex project, to be a public work was repeated in CAO No 43.

8

On 21 June 1990 the State filed an appeal. In May 1991 the appellant sought to be added as a party to the appeal, but in May 1994 in Civil Appeal No 53 of 1990 the court of Appeal by a majority rejected this. It appears from page 7 of the judgment of Churaman, J.A. that “as a consequence of the aforesaid order [of Kissoon, J.], the Registrar of Deeds, quite properly I think in the absence of any stay, duly reconveyed title in respect of the three areas of land to” the first respondent.

9

On 3 March 1995 the court of Appeal dismissed the appeal from Kissoon, J. There is only the following order of the court. “It is ordered that this appeal be dismissed and that the judgment of [Kissoon, J.] be affirmed in so far as the learned judge ordered that the purported acquisition by the State of the respondent's property (described in the Schedule hereunder) be set aside on the ground that the said purported acquisition was made contrary to the requirements of the Acquisition… Act and this court doth declare that the aforesaid purported acquisition was and is unconstitutional and contrary to law”.

Area ‘C’

10

Meanwhile, so far as concerns area ‘C’ and the second respondent, two constitutional motions were filed on the 27 and 29 April 1977. They challenged the validity of the CAOs and the acquisition of area ‘C’ by the State, and claimed they were unlawful, ultra vires and void, so that the second respondent was entitled to the land or, alternatively, to compensation. In August 1982 the State agreed to pay $70,000 compensation in settlement of all claims concerning area ‘C’ upon the basis of both actions being withdrawn and discontinued. The compensation was paid and notices of discontinuance were filed on the footing that the State had acquired title to area ‘C’ in 1977 and the second respondent did not have an effective right to recover the land, only a right to compensation for its compulsory acquisition.

11

There can be no question of the April 1977 actions amounting to actions to recover the land that would prevent time from running in favour of the State. The issue of legal proceedings that are not pursued, but are dismissed for want of prosecution or are discontinued, is no more relevant than a mere demand for possession which is not pursued. As Simon Brown, L.J. stated in Markfield Investments Ltd v. Evans [2001] 1 W.L.R. 1321 at [20],

“In Mount Carmel Investments Ltd v. Peter Thurlow Ltd [1988] 1 W.L.R. 1078 such a demand was held not to stop time running afresh; no more would the service (still less the mere issue) of some earlier writ. Were it otherwise, as the defendant points out, all the true owner would have to do to avoid adverse possession claims is issue (and perhaps serve) a writ every twelve years.”

He went on to hold that earlier proceedings to recover land that were struck out for want of prosecution did not prevent time from running against the landowner.

12

Surprisingly, on 14 November 1989 the second respondent and her now-deceased husband filed a fresh constitutional motion against the Attorney General in which they once again challenged the validity of the CAOs and the resultant acquisition of their lands. They claimed “a declaration that the purported acquisition of the said lands is ultra vires, illegal, null and void … and that the applicants are entitled to have the said lands returned to them upon payment by the applicants of the sum of $70,000 which said sum was received for the said purported acquisition.” They also requested the court to “make such orders … and give such directions as it may consider appropriate.”

13

On 4 July 1995 Trotman, J., by consent of the applicants and the Attorney-General, made various orders. He declared that “the acquisition by the State of [area ‘C’] be set aside as being contrary to the provisions of the Acquisition … Act” and declared the acquisition to be “null and void and of no legal effect”. He then declared that the CAOs “are ultra vires and bad … and null and void and of no legal effect.” He “further declared that the applicants are entitled to have Title to the property restored and registered in their names by the Registrar of Deeds”, and that the applicants give an undertaking to repay the State the $70,000 compensation it had paid to them for the property. The...

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