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INTRODUCTION
[1] This matter concerns the ownership of a parcel of land on the East Coast
of Demerara in the Republic of Guyana, known as "Lot 'A', being a portion of
block 2 of the West Half of the East Half of the Plantation Quaker's Hall."
Although it is only a small piece of land (around 480 sq. m), it is
extremely important to David Lachana and his wife Sadoney, the appellants in
this case. David's parents had lived on this land since 1945 when he was
born there. He grew up on the land and has lived there all his life. In
1965, after they were married, Sadoney joined him and she also has "lived
there ever since." Their five children were born and raised on the land. And
so, in a way, it is the centre of their world.
[2] When Sadoney joined David in 1965, he, his father Albert and several of
his brothers and sisters were living in an old house on the property. That
house was broken down in 1969 and in that same year David and Sadoney built
a new one. They still live there, up to this very day.
[3] Although one can understand why David and Sadoney have come to consider
this parcel of land their own, they have never held title to the land. They
never had a transport of it. The "paper" or "true" owners of the land are
Tara Aijune, in her capacity of administratrix of the estate of her deceased
husband Khemraj Arjune, and Cooblall Arjune. They are the respondents in
this case. Cooblall and Tara received the transport of a parcel of land, of
which lot 'A' is just a part, in 1982 from the former "paper owner" of the
land, a certain Ramsaroop, through his representative E.S. Doobay. The
transport was passed nine years after Cooblall and Khemraj had bought the
land from him.
[4] In 1999, David and Sadoney Lachana petitioned for a declaration of title
to their little plot of land. This petition was based on the Title to Land (Prescription
and Limitation) Act, Cap. 60:02 of the Laws of Guyana. Accordingly, they
were required to satisfy the Court, that a) for a period of twelve years or
more they had had sole, exclusive and undisturbed possession of their piece
of land, b) their possession was open and adverse to the "paper owners" and
c) their possession was not obtained by fraud or by some consent or
agreement expressly made or given for that purpose.
[5] As was to be expected, Cooblall and Tara Aijune opposed the petition and
on 27 November 2003 the Commissioner of Title and Judge of the Land Court
dismissed the petition. The Lachanas appealed the decision but on 13 April
2007 the appeal was dismissed by the Court of Appeal. They subsequently
appealed the judgment of the Court of Appeal. This Court heard the appeal on
3 November 2008 and dismissed it with costs, stating its intention to
deliver its reasons later. We now give our reasons.
THE ISSUES
[6] Although the case was about much more, it ultimately boiled down to two
issues of fact:
(a) At what point in time did the adverse possession, if there ever was one,
begin: in 1969, as the Lachanas initially deposed, or in 1979, as they later
deposed (but thereafter sought to qualify)?
(b) From 1982 to 1997 were the Lachanas rent-paying tenants of Cooblall and
Tara Arjune, the holders of the "paper title", or were they in adverse
possession?
[7] Clearly, if it could be established that the Lachanas had been paying
rent for their lot in the period 1982 to 1997 it could not be said that
their possession was adverse to the Arjunes during that time. But even then,
if they could prove that from 1969 to 1982 their possession of lot 'A' was
adverse to the then "paper owner" they would have satisfied the requirement
of adverse possession of at least twelve years. In that case the title of
Ramsaroop would have been extinguished even before he transferred or
purported to transfer the land to the Arjunes. If, however, the adverse
possession began in 1979, the Lachanas would not have had a sufficient
number of years of adverse possession to defeat Ramsaroop's title in which
case their petition would have to fail.
[8] In a well-reasoned judgment the Commissioner of Title found that the
adverse possession began in 1979 and that it was more probable than not that
the Lachanas had been rent-paying tenants in the period 1982 to 1997. These
findings were fatal to the petition which therefore had to be dismissed.
[9] In an equally well-reasoned judgment the Court of Appeal concurred in
the findings of the first instance judge although it rephrased, correctly we
think, the second issue. The Court of Appeal put the question thus: whether
the Lachanas had sufficiently disproved the contention that they had been
rent-paying tenants of the Arjunes. The Court of Appeal found they had not.
The decisions of the lower courts are ultimately based on these two
concurrent findings of facts, the very same findings we are now asked to
review. The question has been raised whether we should do so.
THE PRACTICE OF THE COURT
[10] Counsel for the Arjunes referred us to the well known case of Devi v
Roy[FN1] where the Privy Council "codified" their (utter) reluctance to
review the evidence for the third time where there are concurrent findings
of two courts on a pure question of fact. This decision was the culmination
of a long line of cases in which the Privy Council developed a rather rigid
practice of non-intervention with the facts of the case including those
facts that were mere inferences from the primary facts. Even when there was
a dissentient in the appellate court or where different reasons were given
by the judges in arriving at the same findings of fact, the Privy Council
was loath to interfere. It would do so in case of "some miscarriage of
justice or violation of some principle of law or procedure." Although the
Privy Council stated in Devi v Roy, and has repeatedly said so in later
cases, that this practice is not a "cast-iron one", it would seem that its
approach has been more rigid than the practice of other final courts in the
Commonwealth. We would in this context expressly refer to recent statements
in the High Court of Australia[FN2] which clearly show a tendency toward
more flexibility.
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[FN1] [1946] AC 508 at pp 521 to 522
[FN2] See Roads and Traffic Authority of NSW v Dederer [2007] HCA 42, in
particular the judgment of Heydon J at [284] to [294]
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[12] We do not think that it is proper for us to adopt wholesale the
practice followed by the Privy Council if only because the position of our
Court is quite different from that of the Privy Council. When their
Lordships decided Devi v Roy they were at the judicial apex of an empire
that spanned all five Continents. In a way they still are, although the
empire has dwindled substantially. The point is that their Lordships are
both geographically and culturally far removed from the countries that still
retain the Privy Council as their final appellate court. They are, quite
understandably, unfamiliar with local situations and customs, and therefore
have to tread very carefully and cautiously with the facts as they emerge
from the findings of the local courts. The disadvantages of that situation
have become clear with some regularity. To take a recent example, in Panday
v Gordon[FN3] their Lordships expressly opted to defer to the findings of
the lower courts even though it meant depriving the appellant of a fresh
look at the factual substratum of the case. The difference with our Court is
obvious. We are a regional Court and thus much closer to home as it were.
Our closeness to the region and our greater familiarity with its social and
cultural dimensions make it easier for us to descend into the facts of the
case, especially where the facts do not turn on the credibility of the
witnesses or where they are the result of inferences from primary facts.
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[FN3] [2005] UKPC 36
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[13] Furthermore, it would seem to us that a policy of rigid judicial
restraint with regard to concurrent findings of fact might be much more
appropriate in appeals with special leave where a final court has a broad
discretion whether to hear a case or not than in appeals as of right. We
note, however, that the Privy Council has maintained its practice even in
those appeals (see Benoit Leriche v Leon Cherry[FN4]).
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[FN4] [2008] UKPC 35
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[14] It is against this background that we intend to develop our own
practice, for the time being on a case by case basis. As this is an appeal
as of right and only deals with factual findings we will, for now, deal with
the issues before us as fully as necessary.
DEALING WITH THE ISSUES
[15] We will start with the first issue: when did the adverse possession of
the Lachanas, if any, begin? As it became clear at the oral hearing, this
was the main issue which counsel placed before us.
ISSUE (A): WAS 1969 OR 1979 THE RELEVANT YEAR FOR THE START OF ANY ADVERSE
POSSESSION?
[16] At first, both David and Sadoney Lachana stated and deposed that they
had been jointly in sole and exclusive possession of lot 'A' nec vi, nec
clam, necprecario since 1969. Later, in a further affidavit they deposed
that David's father Albert Lachana had lived continuously on the parcel of
land in question until his death on 21 July 1979. They further deposed they
had lived on the said land continuously nec vi, nec clam, nec precario since
the death of Albert. Confronted with the apparent contradictions in these
depositions, David testified under cross-examination that his father left
the land in 1969 to live with 'another woman' and then came back after two
years. He also claimed not to know the meaning of 'continuously'. Sadoney is
recorded as having testified under cross-examination that her father-in-law
lived with them up to 1979 in the sense that he lived with them for a period
of time, coming and going, but that he did not die there. The picture that
emerges from these evidential snippets does not look altogether unfamiliar
to the Caribbean eye. That the "old" man would leave his home every now and
then, to live with another woman or otherwise, and that he would come and
go, as Sadoney testified, does not at all mean that he, the pater familias,
had "abandoned" his land. More information would be needed to reach that
conclusion and, unfortunately for the Lachanas, the evidence, skimpy and
sketchy as it is, does not reveal much more. The fact that Albert supposedly
left the land to live with 'another woman' in the same year that his old
house was broken down and a new one was built does not substantially change
the picture.
[17] In a final and almost desperate attempt, counsel for the Lachanas
sought to put the facts in a new context so as to make the point that if it
is that David and Sadoney Lachana were in sole and exclusive possession of
the parcel of land only from 1979 when Albert Lachana died, it must follow
that they simply stepped into Albert's shoes as "successors in title" and
became entitled through the deceased to the prescriptive rights accumulated
by Albert Lachana as a longtime adverse possessor of the land. Although the
Lachanas never pleaded at the trial that they were tacking on their
possessory rights to Albert's, that was not necessary according to counsel
as it would follow from section 2 (4) of the Title to Land (Prescription and
Limitation) Act that they "shall be deemed to claim through" their
predecessor Albert Lachana.
[18] The problem with this submission is that nowhere does the evidence show
or even suggest that Albert, although he had been occupying the land for
many years, had ever been in adverse possession of it. On the contrary, the
tiny bits of evidence that can be found in the record rather seem to
indicate the opposite. And so, there was really nothing to which David and
Sadoney could tack on any possible adverse possession of their own.
ISSUE (B): FROM 1982 TO 1997 WERE THE LACHANAS RENT-PAYING TENANTS OR WERE
THEY IN ADVERSE POSSESSION?
[19] We can be very short about this issue. Counsel for the Lachanas did not
spend much time and energy on this point. We think he was right not to do
so. Much of what the Commissioner of Title found in this respect was based
on his assessment of the credibility (or lack thereof) of especially David
Lachana. As we have said, his judgment was well-reasoned and so was the
judgment of the Court of Appeal. We did not find anything in that reasoning
with which to disagree.
CONCLUSION
[20] For these reasons, the appeal is dismissed with costs. |
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