July 21, 2008

CCJ rules in favour of TPL ( Guyana)

CCJ rules in favour of TPL for part of long-disputed Turkeyen land
Source: Stabroek News - Guyana
Published July 16, 2008

State to retain control over other parcels
The Caribbean Court of Justice (CCJ) yesterday ruled in favour of Toolsie Persaud Limited (TPL) for a section of land at Turkeyen that had been tied up in a marathon legal dispute dating back to 1989 but lost its claim to land that the court said was always in possession of the State.

Land identified in Toolsie Persaud’s petition to the CCJ as areas, `F’, `G’ and `H’ were found to be within lawful claims of the company in addition to an area identified as `C’ but the court ruled that a complication arose with `C’ given that the previous owner, Shivlochnie Singh had transported the land to another person and that individual was not a party to the proceedings.

The court in a lengthy judgment ruled that TPL had successfully petitioned for prescriptive title by adverse possession for 12 years by combining the state’s and its hold over the land since 1977 but it cannot now assert any rights against the current owner of land referred to as C’, who was named as Raymond Austin, since he was not a party to the proceedings in court. According to the judgment, the CCJ, Guyana’s final court of appeal, found that it was quite improper to make any order which affected Austin without giving him an opportunity to be heard.

“It is unfortunate that, given the inordinate length of time that these proceedings have been in progress, that is, some fifteen years (the duration of the appellant’s case), the final disposition of this case will still leave the appellant with another hurdle to cross if it is to succeed in securing title for area ‘C’, but this is a consequence of events over which we had no control’, the CCJ said in its decision.

But ruling on the principal issue of whether the State can acquire by adverse possession land, which it had taken possession of under an order for compulsory acquisition, which had subsequently been declared by the court to be invalid, presiding Justices of the court President Michael de la Bastide; Rolston Nelson; Duke Pollard; Jacob Wit and David Hayton said that physical occupation and use of land with the intention of excluding everyone else, amount to adverse possession, whether the occupier acts in good faith, believing himself to the owner, or in bad faith, knowing that someone else is the owner.

Further they said that the state appears on the record of title as the lawful owner of the other parcels of land and cited a fundamental rule which is that, “possession is never adverse if it can be referred to as a lawful title” and therefore dismissed Toolsie Persaud’s petition for prescriptive title to those areas identified as `K’; `J’; `N’ and `O’ calling it, misconceived. The company’s petition against the State in respect in respect of the area called `K’ was also dismissed since the court found that an Albert Chung-Wee had been the lawful title holder at the time of the compulsory acquisition of the land in 1977.

In its judgment, the CCJ pointed out that the legal disputes relating to the October 1987 contract between the state and Toolsie Persaud remain to be resolved as they, too, were not within the ambit of the appeal.

“It would be an extremely unfortunate waste of resources if these prime lands for development stagnated for decades yet to come due to protracted litigation over the contract. It is hoped, therefore, that the disputes arising from the contract can be speedily settled by the parties with the aid of their legal advisers”, the court said.The CCJ also expressed hope that such a settlement will not be delayed by a protracted dispute between the Toolsie Persaud and Raymond Austin over area C’.In April, 2008 when the matter went before the CCJ the court reserved judgment but requested that the attorneys make written submissions in 14 days on how the court should fashion relief or remedies, were it to find favour with Toolsie Persaud’s application.

In its petition before the court Toolsie Persaud named the Attorney General; Andrew James Investment Limited and Shivlochnie Singh as respondents and was seeking a declaration that it had acquired title by prescriptive title by undisturbed adverse possession of land for 12 years referred to as areas, `C’; `F’; `G’; `H’; `K’; `N’; `J’ and `O’ as being part of Plantation Turkeyen, East Coast Demerara.

But the petition was opposed as to areas `F’; `G’ and `H’ by Andrew James Investments Limited; area `C’ by Singh and areas `K’; `N’; `J’ and `O’ by the Attorney General on behalf of the state.

The entire tract of land had been the subject of a compulsory acquisition order (CAO) of June 8th 1977. In October 1987 the state contracted to sell the entire tract to TPL and the company took possession in April 1988. In March 1989, the First Respondent (James) filed a constitutional motion challenging the CAO. Kissoon J ruled in the favour of the First Respondent in May 1990 and title was returned to it. An appeal by the state of this decision was dismissed by the Court of Appeal in March 1995. The second respondent (Singh) also succeeded in having title returned to her in July, 1995 after launching proceedings in November 1989.

In 1993, TPL filed a petition claiming prescriptive rights by adding its own adverse possession to that of the state. It was this tack that won its case against the First and Second respondents as the CCJ found that the respondents could have taken action earlier against the CAO.

The CCJ held that “a landowner’s right of action to recover his land arises as soon as he can bring an action in which he can claim recovery of title and possession. Thereafter, time runs against him. An action could have been brought against the State from 8th July, 1977 claiming that the CAO and the acquisition of title thereunder were invalid and requiring title and possession to be restored to the relevant landowner. After the appellant took possession in April 1988, the action needed also to be brought against the Appellant. However, no action was brought against the Appellant by the First or Second Respondents up to the time the Appellant filed its petition. There had therefore been the requisite twelve year period (1977 to 1989) during which the State and then the Appellant were successively in possession of the land”.

Attorneys Sir Fenton Ramsahoye SC; Anand Ramlogan and Chandraprakesh Vikash Satram appeared for the appellant, Toolsie Persaud while Ashton Chase SC and Sase Narain represented Andrew James Investments Limited and Rex McKay SC; Neil Boston and Hukumchand appeared for Singh.

The court has ordered that Andrew James Investment Limited and Singh are to pay two thirds of the costs incurred by Toolsie Persaud in the petition while TPL is to pay one third of the AG’s costs.

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