Orders by two courts here in proceedings between claimants to seven acres of rice land at Aurora, Essequibo were yesterday set aside by the Caribbean Court of Justice which said that proceedings in the High Court shall be stayed until the Land Court case between the litigants is decided.
In the meanwhile, the respondent in the case, Omeshwar Misir will be allowed to harvest the existing rice crop. Thereafter, the applicant, Bibi Zarida is entitled to resume possession of the disputed lands until the hearing and determination of the Land Court proceedings.
In its judgment, the CCJ said “A most unsatisfactory state of affairs has led to this application for special leave to appeal under s 8 of the Caribbean Court of Justice Act 2004 and for an order that the hearing of this application be treated as the hearing of the appeal”.
The CCJ said its orders will lead more expeditiously than currently possible to the key determination whether or not Misir’s property rights under a 1999 transport are free from, or overridden by, prescriptive rights of Mr Massabally, now vested after his March 2012 death in his administratrix, Zarida.
In 2010, over a decade after his 1999 transport, the CCJ judgment said that Misir brought an action in the High Court against Massabally alleging him to be in occupation of seven acres of rice land at the South Section of Plantation Aurora, Essequibo Coast and alleged to be comprised within his Transport No 305 of 1999, and claiming possession thereof. Damages were sought and an injunction preventing Massabally, his servants or agents from entering, remaining, planting or otherwise occupying the disputed land. Massabally, however, claimed to have been in possession of the land from 1981 to 1999, so as to have acquired the right to a prescriptive title under the Title to Land (Prescription and Limitation) Act, Chapter 60:02, and thereafter to have continued in possession despite the transport in Misir’s favour. Several applications were made by Misir on a variety of grounds to the Rice Assessment Committee in attempts to acquire possession of the disputed land from Massabally e.g. for non-payment of rent, but they all failed, being dismissed or withdrawn. In relation to Misir’s last application, the CCJ said that the Chairman of the Committee in written reasons dated April 6 2010 made it clear that his Committee had no jurisdiction to determine whether Massabally or Misir had the stronger right to possession of the disputed land, which was the real issue between them.
Misir then approached the High Court on April 27, 2010 over the matter and followed this up three days later with an application for an interim injunction to prevent Massabally from entering and planting the land. On December 30, 2010, Massabally filed his defence and counterclaim in the High Court. He then petitioned the Land Court in 2011 to establish prescriptive title to the disputed land.
The CCJ noted that after an inter partes hearing, Justice Diana Insanally granted the interim injunction to Misir even while noting that the High Court action should be stayed until the outcome of the Land Court application. The CCJ judgment said that Justice Insanally did not however implement her observation by ordering a stay of Misir’s High Court action. She had acted on the presumption that the transported owner was entitled to retain legal ownership until the hearing and determination of the action.
On November 22, 2011 Massabally appealed Justice Insanally’s decision to the Full Court comprising Justices James Bovell-Drakes and Roxane George. The CCJ said the Full Court in a lengthy judgment found that Justice Insanally had not considered the American Cynamid v Ethicon principles for the grant of interlocutory injunctions. The Full Court said that at the time of the filing of the proceedings it appeared that Massabally was in possession and that this had appeared to be the case for a number of years prior to the filing of the action by Misir. The Full Court also found Misir guilty of non-disclosure of several failed applications before the Rice Assessment Committee. It therefore discharged Justice Insanally’s interlocutory injunction.
On July 21, 2014, Misir filed an appeal with the Court of Appeal which is still pending. On July 29, 2015, Misir then filed for a stay of execution of the Full Court decision to discharge Justice Insanally’s interlocutory injunction. On October 19, 2015, Justice BS Roy in Chambers granted the stay pending the Court of Appeal hearing of the appeal from the Full Court. In his judgment, Justice Roy said that he had to focus on Misir’s transport as “the only evidence of legal title to the subject land”. He added: “Unless it is set aside, it gives, as a matter of law, a warranty of title and the title holder is in the meantime, entitled to the enjoyment of that property… It is also a presumption in law that possession of land must follow title. Until the matter is fully ventilated, the present issue remains one of possession and in my respectful view, in the interim, the Respondent (Zarida) has not displaced that presumption of possession.”
On December 1, 2015, Zarida as Massabally’s administratrix applied for Justice Roy’s stay to be discharged. On March 4, 2016, the Guyana Court of Appeal declined to interfere with that stay leading to the application to the CCJ which yesterday set aside the order of the Court of Appeal on March 4, 2016 and the order of Justice Roy on September 19, 2015 staying the execution of the Full Court order.
The CCJ referring to Justice Roy’s order said that it is clear from Ramlagan v Singh that a “title holder is not entitled to the enjoyment of the property if an adverse possessor with prescriptive rights is in possession of the property. Moreover, Roy JA ignored the detailed judgment of the Full Court that analysed opposing affidavits and exhibits thereto and found sufficient uncontroverted evidence to indicate that the status quo on filing the High Court Action had been that the Respondent had been in possession, despite some bare assertions of the Applicant to the contrary.”
It added that the Guyana Court of Appeal refused to interfere with the exercise of Justice Roy’s discretion.
Roopnarine Satram and Chandrapratesh Satram appeared for Zarida while Rajendra Poonai and Sohan Poonai appeared for Misir.
