Chief Justice (ag) Roxane George-Wiltshire on Friday dismissed a petition filed by the Guyana Realty Investments Limited (GRIL) seeking a declaration of title for a property situated at the northwest junction of Regent and Alexander streets, in Georgetown, citing a lack of evidence.
In the case, Anthony Collymore and the Estate of Stanley Collymore and Claude Deygoo, also known as Edward Boyer, and Donna Deygoo, also known as Donna Boyer, both of National Hardware, were listed as the opposers.
“This is a case that has turned not on the weakness of the case for the Boyers as opposers, but on the weakness of the case for GRIL as petitioner,” Justice George said in her 17-page written judgement, which was seen by Sunday Stabroek yesterday.
According to the background as presented in the decision, on 7th May, 2009, GRIL filed a petition for declaration of title in relation to the property, described as a portion of Lot 117 Lacytown, known as Sublot B of Lot 117 Alexander Street, Lacytown, with buildings and erections thereon.
The property as noted in the evidence is in the prime commercial district of Regent Street, Bourda, Georgetown and is bounded to the north by an alleyway, to the east by Alexander Street, and Sublot 117A occupied by Eddie Boyer, to the west by sublot 116 occupied by Rocky Norton and to the south by Regent Street and the said sublot 117A.
The petition, was opposed by Anthony Collymore, individually and in his capacity as administrator of the Estate of Stanley Collymore, deceased, who was the original owner in possession but without transport for the property. An opposition was also filed by the Boyers, who are title holders of the property.
The case went to trial as GRIL versus the Boyers.
The petitioner, GRIL, was represented by Senior Counsel Rex McKay, Edward Luckhoo and Neil Boston, while attorney-at-law Devindra Kissoon, Rajendra Poonai and Sase Gunraj represented the Boyers.
In tracing the history of the ownership and possession of property, the judge wrote that Stanley Collymore had bought the property from Hilary Gomes. After protracted court proceedings, the Estate of Stanley Collymore, Collymore having died in 1989, was awarded specific performance against Gomes by the Court of Appeal. The title was never transferred to his Estate. Carol Blackmore, as executrix of the Estate, in 1989 sold the property to Bhaidwatie Bissoon, who, it is claimed, went into possession. No title was passed to Bissoon but she sold her right, title and interest in the property to GRIL in 1993, which went into possession.
Blackmore was subsequently removed as executrix of the Estate of Stanley Collymore and replaced by Vanessa Collymore and Anthony Collymore and the latter sold their right title and interest in the property. The agreement between Collymore and the Boyers for the sale of the property was evidenced by two agreements, the first dated November 22nd, 1998 and the second dated February 1st, 2007. By the 1998 agreement, the purchase price was $20 million, of which $10 million was paid on the signing of the agreement with the balance due on the passing of transport. The 2007 agreement was in the same vein as the 1998 agreement, including a further purchase price of $10 million of which $5 million was then paid. This agreement simply said that the balance was $5 million. The Boyers subsequently successfully sued Anthony Collymore for specific performance and obtained title in their names in September, 2008.
Among the issues that had to be determined by the court was whether GRIL had factual possession for at least 12 years at the time of applying for prescriptive title and proof that there was an intention to possess the property to the exclusion of all others. It was pointed out that the case necessitated a determination of whether the paper title or transport held by the Boyers had been rendered nugatory by virtue of the claimed possession of the property by GRIL.
There was also the question whether GRIL was in exclusive custody and control of the whole property.
Indar Chand’s testimony on behalf of GRIL was unconvincing as the court concluded that the company was not in total control of the entire property. He deposed that he was employed by Gafson’s Industries Ltd., a sister company of GRIL for over 25 years and as such was familiar with the property having been employed as manager of the hardware and paint store, which was there from 1994 to 1996.
He said he had gone to the property with Sattaur Gafoor, the Chief Executive Officer (CEO) of Gafsons Ltd, before the property was purchased, to check on its suitability. Chand claimed that Gafoor introduced him to Bissoon, who in turn introduced her sister. “However, he subsequently said that he had never met Ms. Bissoon; that he had only met her sister,” the judge wrote.
Although acknowledging that his affidavit said that there were two buildings on the property, he said in his testimony that when he commenced working there, there were three buildings on the property – a single storey building facing Alexander Street, a two-storey wooden and concrete building facing Regent Street and a two-storey concrete building which was behind the two-storey building facing Regent Street. He said that GRIL did repairs to the front two-storeyed building in 1994, the lower flat first and then the upper flat, and thereafter GRIL sold paints and PVC products from the lower flat.
Chand swore that while he occupied the lower flat of the building, the upper was occupied by the sister of Bissoon, who vacated this flat about two months after he began working there. It is when she left that the repairs to the upper flat were done. This flat became the storage bond for the GRIL store. At the end of 1996, when he left, GRIL was in occupation of the entire front building facing Regent Street.
Although he spoke of the two buildings being occupied, Chand acknowledged that there was a drug yard in part of the property that had a lot of people. He referred to the Alexander Street building (the third one) being a drug yard because when one “looked over there were a lot of people who used to fight and quarrel often.” When these incidents occurred, the police came sometimes two to three times per day, according to him. He did not say that it was the employees or principals of GRIL that called the police. He said nothing about whether GRIL had anything to do with the two women who were in occupation of two of the buildings or to the people in the drug yard. “Again, Mr. Chand’s evidence indicates that GRIL had no control over the entire property,” the judge wrote.
While rates and taxes receipts from 1994 to 2007 were exhibited, only one indicated a payment by GRIL.
It was explained by Mohamed Ali, the then Director and CEO of GRIL in cross examination that GRIL was a property holding company with little by way of assets and as such the rates and taxes were paid by the companies – Gafsons Industries Ltd and Gafoor and Sons Ltd. Given the evidence of Ali and Sattaur Gafoor, it would appear that these are sister companies. It was stated that the property had been repaired by GRIL in the sum of approximately $2.8 million in order to facilitate the opening of one of GRIL’s outlets for the sale of paint, ironmongery and PVC products. “Receipts proving this expenditure on renovation were not tendered,” the CJ said while noting that the evidence is that GRIL opened a store at the Regent St side of the property for the sale of paint. Additionally, GRIL was paying for the supply of water and electricity utilities.
The judge concluded that although she believed the evidence that GRIL purchased the property in 1993 and was in possession of a building which housed a paint store unto 2007, which would be in excess of 12 years, “the evidence for GRIL does not establish actual possession and an intention to possess the whole property for the requisite period. It is clear from the 1993 agreement which they tendered that GRIL went into possession of that portion of the property which Ms. Bissoon herself had possession of.”
It was pointed out that Bissoon could not have had exclusive possession of the property. “Indeed, with the revocation of Ms. Blackmore’s grant of probate, and Ms. Bissoon not having concretised her ownership of the property as against the Estate of Collymore, the right, title and interest she sold to GRIL would have been limited at best,” the judge added.
She said Chand’s evidence did not establish that GRIL was in possession and control of the whole property. “Indeed, it strongly suggests otherwise,” she noted before adding that Gafoor’s evidence in this regard was not “cogent” either.
In dismissing the petition, Justice George awarded costs to the Boyers in the sum of $300,000.
