The Full Court in a ruling earlier this month overturned a decision by Justice Sandil Kissoon after finding that he erred in striking out an affidavit-in-defence in a case which he declared as having no triable issue.
Justices Priya Sewnarine-Beharry and Fidela Corbin-Lincoln, sitting in the Full Court, ruled that in keeping with the Civil Procedure Rules (CPR), it was incumbent upon Justice Kissoon having heard of the Fixed Date Application (FDA) to proceed to determine the application based on the evidence before him or if there was insufficient evidence, to determine the application on its merits or dismiss the application.
The court said that alternatively the judge could have proceeded as if the FDA was commenced by Statement of Claim (SOC) and conduct the hearing as the first Case Management Conference, in compliance with the CPR.
The case involved a family dispute over property where appellants Sybil and Rodwell Jerrick are contending that having lived uninterrupted for more than three decades—since 1986—at the Pike Street, Kitty family property, they are eligible for prescriptive title, having been in adverse possession which requires a minimum 12 years of uninterrupted occupation.
Hodiah Davidson, who is Sybil’s niece and Rodwell’s cousin, wanted them out.
Claiming ownership of the now disputed property, which she said she owns along with five other persons in equal shares, Davidson is arguing that she had given her aunt permission to live at the property but that that permission was withdrawn by notices dated 31st January, 2019.
Finding the Jerricks’ defending affidavit as disclosing no triable issue, Justice Kissoon granted Davidson vacant possession of the property.
Asserting their contention of right to adverse possession, which adds to the merits of their affidavit-in-defence, the Jerricks recounted that since 1986 neither Davidson nor any of the other transported owners have exercised any right of ownership or come onto the property.
In fact, they have said that it was not even Davidson who had given them permission to live in the property, but rather her mother, Margaret Davidson.
Recounting the events which led to them living there, the Jerricks said that in 1983 Hodiah’s grandmother, Johanna Morris, was left in the Salvation Army to live since she (Hodiah), her siblings and Margaret all migrated to the United States, leaving no one to care for Morris.
Sybil said that she visited Morris at the Salvation Army and as a result of what she saw and was told by Morris, she took her to the Pike Street property to live with her until her death in 1984.
A few days before the woman’s passing, however, Sybil said that she asked her to call her daughter, Margaret, in the US. Sybil said she called Margaret, who returned to Guyana just days after her mother died.
According to Sybil, after the funeral Margaret requested that she (Sybil) and her family live at the property, which they did in 1986 when the tenants moved.
Sybil said that they have been living there ever since and that neither Hodiah nor any of the other transported owners ever gave permission to them to occupy the premises. Further, she said that since occupying the property Hodiah has never been to the property or exercised any right of ownership.
Sybil said that from 1986 they have treated the property as their own and have exercised all rights as owners by paying rates and taxes and maintaining and upkeeping the building.
Outlining their expenditure over the years, Sybil said that they expended over $8 million, which included replacing a wooden fence, completely repairing a rotten roof, replacing windows, concreting the front yard, installing a new gate, replacing all doors, installing a bathroom sink, redoing the entire kitchen floor and repainting the interior of the building about five times over the years.
Sybil is arguing that not only has their uninterrupted occupation of the property for more than 12 years given them right of ownership on adverse possession, but that resultantly, the transported owners of the property have lost their legal rights to the property.
She said that as far as she is aware, the transported owners never came back to Guyana since they left in 1983. The Jerricks intend to apply for prescriptive title.
Justices Sewnarine-Beharry and Corbin-Lincoln note that the record does not disclose that the respondent filed an affidavit-in-reply, while stating that Part 10:05 of the CPR specifically sets out the well-established rule of pleading that “Unless it has already been pleaded in the …Fixed Date Application, a claimant or applicant who intends to prove a version of facts different from that pleaded in the defence or affidavit in defence must…file an affidavit-in-reply.”
The court noted, too, that the evidence of the appellants contained in their defending affidavit was therefore undisputed by the respondent’s failure to file a responding affidavit.
Referencing the record of proceedings, the Full Court said it reflected that Justice Kissoon rejected the Jerricks’ submission that Hodiah as co-owner of the property had no standing to bring the proceedings and found that they were in possession of the property with the permission of Hodiah and consequently were not in adverse possession.
The Full Court said that from the affidavits, it is evident that there are material facts in dispute.
The two Full Court judges said that given the apparent dispute of facts Justice Kissoon ought not to have determined the FDA based on the affidavits but was duty bound to apply Part 8:04(5)(b)(ii) of the CPR and proceed as if the FDA was commenced by SOC and conduct the hearing as the first case management conference.
The judges also observed that as part of the grounds of appeal, it was asserted that the onus was on the respondent to show that her title had not been extinguished. This, they said, is inaccurate.
Citing case law, the judges explained that there is instead a presumption that possession follows the paper title unless someone in possession can show a greater right.
On this point, they said that the onus would be on appellants to convince the court by evidence that they have dispossessed the transported owners and extinguished their title by being in open, uninterrupted adverse possession and occupation of the property for twelve years.
It is the appellants, they also say, who must prove by evidence a sufficient degree of physical custody and control over the property and an intention to exercise such custody and control on their behalf for their own benefit independently of anyone.
It is then the judges said that the legal and evidential burden shifts to the applicant to demonstrate on a balance of probabilities that she asserted her rights of ownership during the period time began to run in favour of the respondents.
“The well settled maxim `he who alleges must prove’ applies,” they said.
In the circumstances the Full Court allowed the appeal, ordering that Justice Kissoon’s decision be set aside and that the initial FDA brought against the Jerricks by Hodiah continue as if commenced by way of statement of claim.
The court further ordered that Davidson pay the Jerricks costs in the sum of $200,000 on or before 5th June 2020 and that the Registry lists the matter for further case management before Justice Kissoon on a date to be determined.
The Jerricks were represented by attorney K Juman Yassin SC, while Davidson was represented by Tameika Clarke.
With the closure of courts due to current COVID-19 restrictions, the case was heard via electronic means.
