The Caribbean Court of Justice (CCJ) yesterday overturned a ruling by the Guyana Court of Appeal, ending a decades-long land dispute between two Essequiban brothers, when it ruled that adverse possession of the land by one, trumped any titled interest of the other.
Judgment in the case of Kowsal Narine versus his brother Deonarine Natram and former owners of the land Ashbourne Lipton Chan and Foster Gilford Chan, was delivered yesterday, with the CCJ ruling that Narine had been in “sole and undisturbed possession of the land since 1st June 1991 and that any title, right or interest of Deonarine had been extinguished pursuant to the Act.” The ruling affirmed a High Court decision made by Justice Roxane George, who had ruled that Narine had been entitled to the land through prescriptive rights.
“As to whether Kowsal acquired prescriptive title in his own right, the Court accepted his evidence and found that he had satisfied the requirements of section 3 of the Act. He had been in sole and undisturbed possession of the land since 1st June 1991 when the gratuitous licence granted by the Chans terminated upon the death of his father,” the judgment stated.
“Court’s finding on this issue was further supported by Deonarine’s evidence that he was never in possession of the land as well as his failure to commence proceedings for the recovery of land within twelve years after Kowsal entered into possession. The Court noted that when Kowsal commenced this matter on 27th August 2002, he had not yet been in possession for twelve years. But when he filed his statement of claim on 29th October 2003, he had acquired the statutory twelve-year period and the title of any paper owner had been extinguished,” it added.
It was further found that neither Deonarine’s counterclaim to the land, filed in 2003, nor the passing of the transport to him were enough to override the rights Kowsal had acquired from being in occupancy of the land for all that time.
It was explained that Narine and Natram’s father, Nateram, had entered into an agreement with the Chans, committing to pay $360 per acre for the purchase of 5.21 acres of land. Nateram had made a down payment, and was allowed to occupy the land on the condition that the remainder of the money, plus interest, would be paid off within six years.
Nateram never fully paid the sum, however, and while a payment was made on the land in 1981 by Kowsal on Nateram’s behalf, in 1989, Nateram would gift the land to Deonarine, committing to pass possession and transport of the land to him.
However, it was stated that Deonarine approached the Chans himself, and agreed to buy the land from them.
The first disagreement over possession of the land would arise in 1989, when Deonarine would file a claim against Kowsal and another brother seeking damages, an injunction preventing them from working the land, and an order that they give up possession.
However, in the following year, he would discontinue the claim.
It was stated that in 1990, the land was passed to Kowsal through his father’s will, which stated that the balance of the purchase price would be paid by him, and the title was to be passed on.
But in 2002, Deonarine received the transport to the land, which he had bought from the Chans, and in opposition to his brother’s occupancy, “came on to the land, burnt six bags of seed paddy and warned Kowsal not to enter the lands anymore.”
It was stated that it was this action which led Kowsal to commence proceedings in the High Court.
Tenant at will
At the High Court, Justice George had found that Nateram had acquired prescriptive rights to the land based on the years spent on the property after 1965, which was when the final payment on the land was made. She had stated that Nateram had become a “tenant at will” one year after that payment.
“The trial judge held that the deceased’s failure to pay the full purchase price was not “a bar to his adverse possessory rights continuing to accrue to him”, relying on Ramlakhan v Farouk. The trial judge further found that Kowsal, in his own right, had acquired prescriptive title from 1990 with time running in his favour after Deonarine discontinued the action for possession filed in 1989,” it was stated.
But when Deonarine approached the Court of Appeal to review the decision, Justice George’s ruling was not upheld.
The Court of Appeal disagreed with the decision, arguing that Nateram could not have been entitled to prescriptive rights as he had an agreement with the Chans, and they were aware of his presence on the property.
“The court also disagreed with the trial judge’s finding that Kowsal had acquired prescriptive title in his own right as the evidence was not of the quality that should have satisfied the trial judge that he had the requisite intention to possess. The court concluded that, in any event, Kowsal could not succeed in his claim due to non-compliance with the Rules. The appeal was allowed and costs awarded to Deonarine agreed in the sum of $100,000.00,” it stated.
While the CCJ agreed with the Court of Appeal’s standing that Nateram was not a “tenant at will” as Justice George had ruled,” it found that Kowsal had indeed acquired prescriptive rights through his occupation of the land.
Kowsal Narine was represented at the CCJ by CV Satram, R Satram, Mahendra Satram and Visal Satram while Deonarine Natram was represented by Anil Nandlall and Manoj Narayan.
