The Caribbean Court of Justice (CCJ) last Friday dismissed an appeal in which a Guyanese woman, her daughter and her daughter’s husband were seeking adverse possession of a portion of land.
The case involved Basantie Persaud who had obtained a declaration of title from the Com-missioner of Title to a portion of land—Sublot X—the northern portion of West ½ Lot 80 Duncan Street, Newtown, Kitty.
Sublot X was passed to the late common-law husband of Persaud, Frederick Fletchman, when his mother Iris Sobers died in 1990.
Iris, had signed a written agreement with her brother Carlton Sobers in 1965 to lease Sublot X, which was a portion of Carlton’s property for a term of 99 years, but it took effect and remained as a tenancy from year to year pursuant to s 6(3) of the Landlord and Tenant Act as it was never executed.
From the time of the agreement to now, Sublot X has been in the consecutive possession of Iris and Fletchman—both now deceased—and Persaud (the Respondent).
The declaration of title to Persaud was appealed by the Appellants—Shakeela Kanhai, her daughter Evie Anne Kanhai and Evie’s husband Miguel Gurcharan—who obtained, transport, showing ownership, to the property when it was purchased by Shakeela’s now deceased husband Ram Kanhai.
According to court documents, although Ram Kanhai bought the property in 1992, it was only in 2007 that he first attempted to get possession of Sublot X.
In 1992 Gladstone Alert, who the Court said appeared to have obtained the Property from Carlton, sold it to Mr Kanhai.
After Ram Kanhai died, his wife then conveyed the property to her daughter and son-in-law, the second and third appellants respectively.
After the dismissal of an action for possession of Sublot X brought in 2007 by Ram Kanhai against Fletchman, the latter sought a Declaration of Title to Sublot X, which was granted by the Commissioner of Title to Persaud after Fletchman’s death.
The Court of Appeal dismissed the appeal of the Appellants against that decision, after which they appealed to the CCJ.
The Guyana Court of Appeal had dismissed the appeal, holding that Ram Kanhai’s title to Sublot X expired in 2002, twelve years after Iris’ death, and that Fletchman then had a right to obtain a declaration of title to that part of the property.
The Appellants disagreed with that decision and appealed to the CCJ which, however, affirmed the judgments of both courts below.
The Trinidad-based court of last resort for Guyana would find that Iris had been given possession of Sublot X by her brother, and that this possession was maintained by Iris and continued by Fletchman and Persaud from 1965 onward.
In the Apex court’s judgment delivered by Justice Jacob Wit, while the Court acknowledged that, based on the agreement, Iris’ possession of Sublot X was always with the consent of her brother, that agreement ended when she died in 1990.
The Court went on to note that from that time, the possession of Sublot X as continued by Fletchman and Persaud, became adverse to the owner of the property and found therefore that the title held under transport by the Kanhais had in effect expired in relation to Sublot X in 2002 and that Fletchman became entitled to a declaration of title to Sublot X.
The Court would go on to further note that though Ram Kanhai attempted to obtain possession of Sublot X in 2007, by that time it was too late as his title to that part of the property had already expired.
The CCJ said finding that Iris had been given possession of Sublot X by Carlton Sobers under the agreement and that that possession was maintained by Iris and continued by Fletchman and Persaud, in such a case, where possession held by a tenant moves from being a possession with the consent of the landlord to one without such consent, the nature of the possession does not change except that, for limitation purposes, it becomes adverse.
In that context the Court said it is therefore not required to establish factual possession and intention to possess.
Though s 9(2) of the Title to Land (Prescription and Limitation) Act provides that, for adverse possession, time begins to run after the first year where there is a tenancy from year to year without a lease in writing, the Court said in light of Section 3 of that Act, it did not assume that Iris’ possession had ever been adverse.
“She was always in possession with the consent of Carlton Sobers (as impliedly acknowledged by her in her last will),” the CCJ said It noted further that since she was never required to pay rent, there was nothing to indicate to Carlton Sobers when a right of action would have begun to accrue against him. Strict application of s 9(2) of the Act the Court said, “may in such a case, therefore, lead to arbitrary deprivation of property contrary to art 142(1) of the Guyana Constitution.”
The Court held, however, agreeing with the Court of Appeal, that the Agreement between Iris and Carlton Sobers – being a personal contractual relationship – expired upon Iris’ death in 1990.
As such, time at least began to run in 1990 and, since there was nothing to interrupt the running of time prior to 2002, the title of Carlton Sobers in relation to Sublot X expired in that year and Fletchman became entitled to a declaration of title to Sublot X.
The apex Court thus dismissed the appeal and awarded costs to Persaud in the sum of $750,000, as agreed by the parties.
The CCJ in its ruling described the process and its essential elements of obtaining land through prescription in Guyana as “a messy area of the law often made even messier by factual obscurities,” while noting that instant case is no exception.
The appeal was heard by Justice Wit, along with Justices Winston Anderson, Maureen Rajnauth-Lee, Denys Barrow and Peter Jamadar.
Persaud was represented by attorney John Lindner, while the appellants were represented by a battery of attorneys led by Senior Counsel Rajendra Poonai.
