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[1] JUDGMENT
[1] The genesis of this appeal can be traced to the occupation of four lots
of land situate at Lot 68 Village, Corentyne, Berbice, by Lackram Bisnauth (hereinafter
"Lackram"). He sought to obtain ownership of these lots by prescription, and
in December 1998 filed a petition for a declaration of title. Sadly, he died
in January 2000. The respondents entered an opposition to the petition, and
after a contested hearing in the Berbice High Court, on 23rd April, 2002 the
Commissioner of Title and Judge of the Land Court dismissed the opposition
to the petition and declared that the estate of Lackram had acquired
absolute title to the said lots of land, and that Edward Jonathan, the
appellant, in his capacity as executor of the estate of the deceased, was
entitled to a conveyance thereof.
[2] The respondents filed a notice of appeal against the decision of the
Commissioner of Title, and on 13th June, 2007 the Guyana Court of Appeal
allowed the appeal. On 10th October, 2007 the Court of Appeal granted leave
to appeal to this Court and on 24th October, 2007, a notice of appeal was
filed in which the appellant challenged the findings of the Court of Appeal,
inter alia, in relation to his possession of the land for the statutory
period in the absence of any evidence that he had abandoned possession of
the property.
[3] On 3rd April, 2009 this Court dismissed the appeal after hearing
submissions from Counsel for the appellant and for the respondent. We
undertook to deliver reasons for the decision, and now proceed to do so.
BACKGROUND
[4] It is common ground that in 1957 Lackram was allowed into possession by
his mother, Janki Hanoman, (hereinafter "Janki") the title holder, of part
of lot 40 on which he constructed a wooden house. He occupied the house with
his wife Arlene Bisnauth and their eight children. In or about 1960 he
entered into possession of lots 37, 38 and 39 with his mother's permission.
Lackram alleged in his petition that his occupation of the said property was
"in open adverse (sic) over the whole of the said property and has exercised
and still continues all acts of full ownership over same since the year 1957
unto the present time, nec vi, nec clam, nec precario" and that he "enjoyed
and still continues to enjoy the peaceful and quiet possession and
occupation of the said property ..." Such acts of ownership as
particularised in his petition, Lackram claimed to have carried out on the
lands during the period 1957 to 1999 "free from any interruption by any
person or persons whomsoever."
[5] However, on the basis of the testimony of Arlene Bisnauth, wife of
Lackram, found to be credible by the learned judge of the Land Court, it was
established that between 1957 and 1981 Lackram paid to Janki yearly an
amount of $50 when he occupied part of lot 40 and $100 yearly when he
extended his occupation to lots 37, 38 and 39. It is noteworthy that nowhere
in the pleadings of either party is there any claim that Lackram paid rent
or made any payments for the lands. These lands were transported to the
respondents by Janki in 1996 when Lackram allegedly refused to buy them.
Lackram paid the above-mentioned amounts to Janki until 1981 when he took
his wife and the majority of his children to the United States of America,
and on a return visit in 1982 took his mother, Janki, with him. Lackram's
three sons remained in the house until 1983 when he returned for them.
Thereafter his niece, Venus occupied the house.
On one of the periodic visits which Lackram made to Guyana he met and became
friendly with a young lady named Savitri Persaud who testified on behalf of
the respondents, but whom the trial judge found to be credible. She claimed
that they met in March 1984 and lived together for a few months in his house
on lot 40. When he left she continued to reside there until 1994 during
which time he returned on several occasions and stayed there with her. In
1996 the house which was constructed by Lackram in 1957 was demolished and
replaced by another house which he bought. He and Savitri continued to
cohabit in the new house until 1998. In 1999 he became ill and was taken
back to the U.S.A. where he died on 15th January, 2000. In 1998 he had
instituted proceedings in the Land Court for a declaration of prescriptive
title to the lands which had been transported by Janki to the respondents in
1996.
ISSUES
(I) WAS THERE AN INTENTION BY JANKI AND LACKRAM TO ENTER INTO LEGAL
RELATIONS BETWEEN 1957 AND 1981?
[7] The learned trial judge of the Land Court found "as a fact from the
evidence adduced that Janki Hanoman, the mother of the Petitioner Lackram
Bisnauth, had ceased to exercise any or all of her possessory rights to the
said land as from the year 1982 when she migrated to the U.S.A. and that any
tenancy at will which may have existed prior to that date had come to an end."
[8] The Court of Appeal, in allowing the appeal and overruling the decision
of the trial judge, found that Lackram was a tenant from year to year and
that the tenancy was determined by implication when Lackram and Janki
emigrated to the U.S.A. in 1982 "and possession of the property reverted to
the title holder," Janki. The Court of Appeal further held "(t)here appears
to be no relationship of landlord and tenant from 1982 between the
petitioner and title holder despite the fact the Commissioner found that the
respondent was in exclusive possession of the property when the respondent
abandoned the tenancy."
[9] In our opinion the courts below fell into error in finding that there
was a tenancy between Janki and Lackram during 1957 and 1981. Indeed, on the
basis of the facts established by evidence, the ordinary requirements of a
tenancy were palpably lacking. The traditional distinction between a tenancy
and a licence of land lies in the grant of land for a period at a rent with
exclusive possession as opposed to mere permission to be on the land.
Admittedly Lackram's petition alleged no tenancy, but nowhere in the said
petition is there any claim by him that his occupancy and possession of the
property were exclusive. In this connection it is important to bear in mind
that a tenancy as defined in Section 3 of the Landlord and Tenant Act Cap.
61:01 stipulates "exclusive possession" as a requirement of such an
arrangement. Section 3(2) of this enactment provides:
"A tenancy from year to year is a holding of land or buildings under a
contract, express or implied, for the exclusive possession thereof for a
term which may be determined at the end of the first year or any subsequent
year of the tenancy either by the landlord or the tenant by a regular notice
to quit."
Similarly, in sections 3(1), (3) and (4) the requirement of exclusive
possession was posited for other types of tenancies.
[10] However, the test of exclusive possession is not determinative of a
tenancy even where it is coupled with the payment of rent if there is no
clear intention by the parties 1 2 to create legal relations[FN1]. In Romany
v Romany[FN2] Georges, J.A. in the Court of Appeal of Trinidad and Tobago,
had this to say:
"Recent authority makes it clear that in family situations . where one
member helps another in a period of difficulty over accommodation there is
usually no intention to create legal relationships, so that there can be no
tenancy at will but merely a licence."
Similar sentiments were expressed by Lord Denning in Isaac v Hotel de Paris
Ltd.,[FN3] who found that:
"the circumstances and conduct of the parties show that all that was
intended was that the defendant should have a personal privilege of running
a night bar on the premises with no interest in the land at all."
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[FN1] Booker v Palmer [1942] 2 All ER 674 ; Errington v Errington & Woods
[1952] 1 K.B., 290; Cobb v Lane [1952] 1 All ER 1199; Abbeyfield (Harpenden)
Society Ltd v Woods [1968] 1 WLR, 374; Shell Mex & B.P. Ltd v Manchester
Garages Ltd [1971] 1 All ER, 841; Edwards v Brathwaite (1978) 32 WIR 85;
Street v Mountford (1985) AC 809
[FN2] (1972) 21 WIR 491 at 494
[FN3] (1960) 1 WIR 23
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[11] By analogous reasoning it does appear that Lackram, the eldest son of
Janki, was allowed to construct a house on part of lot 40 for himself and
family after he was married as a personal privilege which incurred no
transfer of an interest in the land. Indeed, the familial relationship which
Lackram never disclosed in his petition raises a presumption of an intention
not to create legal relations. The relationship supported inferentially the
status of licensor and licensee, and appears to invoke unequivocally dicta
of Lord Greene M.R. in Booker v Palmer (supra) to the effect that "(t)here
is one golden rule ... that the law does not impute an intention to enter
into legal relationships where the relevant circumstances and the conduct of
the parties negative any such intention."
[12] If Lackram and Janki had considered the arrangement to be a tenancy, it
is reasonable to assume that there could have been some evidence of payment
of rent. Equally there is no evidence that Lackram paid rates on the land
except for one receipt of dubious legitimacy issued by the Neighbourhood
Democratic Council in 1994. In any event, the payment of rates is not
conclusive evidence of possession or ownership. (See Bazil and Another v
Wharton[FN4]).
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[FN4] (1992) 47 WIR 238
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(II) DID LACKRAM CONTINUE IN POSSESSION AS LICENSEE WITH JANKI'S EXPRESS OR
IMPLIED CONSENT AFTER 1981; IF NOT, WAS HE IN ADVERSE POSSESSION TO HER
TITLE BETWEEN 1982 AND 1999?
[13] In order for Lackram to succeed in his petition, he must establish to
the satisfaction of this Court that he fulfilled the relevant requirements
of Sections 3 and 10(1) of the Title to Land (Prescription and Limitation)
Act Chapter 60:02. The provisions of Sections 3 read as follows:
"(3) Title to land (including State land or Government land) or to any
undivided or other interest therein may be acquired by sole and undisturbed
possession, user or enjoyment for thirty years, if such possession, user or
enjoyment is established to the satisfaction of the Court and was not taken
or enjoyed by fraud or by some consent or agreement expressly made or given
for that purpose:
Provided that except in the case of State land or Government land, such
title may be acquired by sole and undisturbed possession, user or enjoyment
for not less than twelve years, if the Court is satisfied that the right of
every other person to recover the land or interest has expired or been
barred and the title of every such person thereto has been extinguished.
(10)(1) No right of action to recover land shall be deemed to accrue unless
the land is in the possession of some person in whose favour the period of
limitation can run (hereafter in this section referred to as "adverse
possession") and where under the foregoing provisions of this Act any such
right of action is deemed to accrue on a certain date and no person is in
adverse possession on that date, the right of action shall not be deemed to
accrue unless and until adverse possession is taken of the land."
[14] The Court needed to be satisfied that between 1982 and 1999:
(1) Lackram was in sole and undisturbed possession, user or enjoyment of the
land for not less than twelve years, his possession being the possession of
a person in whose favour time can run, and that the right of every other
person to recover the land or interest had expired or been barred and
extinguished;
(2) such possession, user or enjoyment was not taken or enjoyed by fraud or
by some consent or agreement expressly made or given for the purpose.
[15] Having regard to the relationship existing between the parties which
was clearly evidenced in Lackram's action of taking his mother, Janki to the
U.S.A. in 1982, it does appear to be the subject of a reasonable inference
that the very thought of Lackram excluding Janki from the property would
have been anathema. In any event, irrespective of the characterisation
accorded to them, those payments by Lackram to Janki in respect of the lots,
as mentioned above at [5], if established, conclusively constituted an
acknowledgment by Lackram of Janki's title thereby precluding a viable claim
for adverse possession, his possession being by virtue of Janki's express
consent (see: Section 3 of the Title to Land (Prescription and Limitation)
Act, Cap. 60:02, supra).
[16] In relation to the period 1982 to 1999 both courts below still laboured
under the misapprehension that a tenancy existed between Janki and Lackram.
The trial judge found that Lackram's holding over without payment of rent
after 1981 created a tenancy at will by implication. The Court of Appeal
held that the yearly tenancy terminated in 1982 resulting in possession of
the property reverting to Janki; and there was no evidence that Lackram was
in possession of lots 37, 38 and 39 between 1982 and 1999 despite a claim in
paragraph 4 of the petition to the contrary.
[17] In the view of this Court there was nothing to displace Lackram
continuing as licensee with Janki's consent after 1981. He resided for most
of the time in the U.S.A., and returned to reside permanently in Guyana only
in 1996. It follows therefore that his possession as such was not the
possession of a person in whose favour the period of limitation could run.
[18] The determinative provisions of section 3 of the Guyana Title to Land (Prescription
and Limitation) Act, Cap. 60:02, and the earlier Ordinance of 1916 eschew
employment of the terminology "adverse possession" and speak of "sole and
undisturbed possession, user or enjoyment for not less than twelve years, if
the Court is satisfied that the right of every other person to recover the
land or interest has expired or been barred and the title of every such
person thereto has been extinguished."
[19] In an attempt to elucidate the applicable law in Guyana, this Court in
Toolsie Persaud v Andrew Investments Ltd and Others[FN5] in addressing the
issue of adverse possession maintained:
"the position is that a claimant to land by adverse possession needs to show
that for the requisite period (he and any necessary predecessor had:
(i) a sufficient degree of physical custody and control of the claimed land
in the light of the land's circumstances ("factual possession");
(ii) an intention to exercise such custody and control on his own behalf and
for his own benefit, independently of anyone else except someone engaged
with him in a joint enterprise on the land ("intention to possess")".
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[FN5] (2008) 72 WIR 292, CCJ Appeal No. CV 1 of 2007
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[20] This Court was also careful to point out that in effecting entry to the
land it was not important whether the intended possessor was aware of his
wrongful act or entered the land under the mistaken belief that he had a
legitimate right to enter, provided that such entry was not referable to an
agreement or permission of the true owner. Over thirty years earlier Crane,
J.A. in Gobind v Cameron[FN6] emphatically stated that "the modern notion of
adverse possession is to be found in s. 10 (1) of Cap. 184(G) where it can
be seen that the concept is now merely a useful expression to describe the
possession of those against whom the true owner has a right of action by
accrual of time"; and the effect of the Limitation Act is to "substitute for
a period of adverse possession in the old sense a simple period of time
calculated from the accrual of the right of action," without qualification.
In spite of this the old mantra of "nec vi, nec clam, necprecario" continues
to be utilised in petitions for declaration of title.
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[FN6] (1970) 17 WIR 132
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[21] Although Lackram alleged in his petition that he exercised "all acts of
full ownership" over the lands, such acts of ownership as described did not
extend from 1957 to 1999 in respect of all of the four lots. It is doubtful
whether any cultivation of lots 37, 38 and 39 took place until his permanent
return to Guyana in 1996 and this is borne out by an examination of the
Commissioner of Title's inspection report on 17th December, 2001.
[22] Applying the law to the facts established in evidence, this Court has
determined that between 1982 and 1999 Lackram was not in adverse possession
for the prescribed period or at all. He never alleged in his petition that
he was ever in sole or undisturbed possession of the lands in dispute, and
assuming, but not accepting, that he was ever in sole or undisturbed
possession of the lands, he was never in a position to establish to the
satisfaction of the Court that such possession was uninterrupted for the
prescribed period especially between 1982 and 1996 when he was still
residing in the U.S.A. Further, even assuming, but not conceding, that he
was in exclusive, continuous possession of the lands for a period in excess
of twelve years, such possession was referable to the implied licence and
continued consent of Janki in the absence of evidence to the contrary. This
operated to preclude time running against her and in favour of Lackram for
any period between 1982 and 1999. In the premises this Court is constrained
to conclude that at no time between 1982 and 1999 was Lackram in adverse
possession to the title of Janki.
COMPLIANCE WITH APPLICABLE PROCEDURES FOR DECLARATION OF PRESCRIPTIVE TITLE
[23] Both the learned judge of the Land Court and Kissoon, J.A. in the Court
of Appeal commented adversely on the failure of both Counsel for the
petitioner and opposers to follow the required procedure in such matters. In
fact, Kissoon J.A. discussed in rather great detail the need for strict
compliance with the Rules of the High Court (Declaration of Title), and
quoted extensively from the judgment of Langley, J. in the case of
Incorporated Trustees of the Diocese of Guiana v McLean[FN7] who expressed
this view in relation to the filing of petitions for prescriptive title:
"It is clear that the procedure did not contemplate these documents being
regarded as preliminary to the appearance of a series of witnesses for
either or both parties at the hearing. It was intended that all normal cases
should be heard and determined solely on evidence by affidavit. In
exceptional cases, additional oral evidence might be adduced, but that event
should not be allowed to provide a means of importing new issues which
either party may not be prepared to meet."
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[FN7] (1939) LRBG 182
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[24] The learned judge in that case with considerable hesitation allowed the
additional oral evidence to be led, but stressed that he decided to do so
solely because the petition and supporting affidavit were so deficient in
supplying material evidence that he would have had no option but to dismiss
the petition without hearing the opposition on the ground of lack of
essential evidence.
[25] Similar observations could have been made in relation to the petition
in this appeal. It lacked specificity on important and material details,
such as Lackram's relationship with the true owner or the circumstances of
his occupation of the lands. These details may have avoided the
irreconcilability of the facts in the petition with Arlene's evidence of
Lackram's occupation of the lands with his mother's consent. As it stood and
applying the reasoning of Langley, J., the petition ought to have been
dismissed either at the court of first instance or by the Court of Appeal.
[26] For all the foregoing reasons, the appeal was dismissed with costs
agreed at $300,000.00.
JUDGMENT OF THE HONOURABLE MR JUSTICE WIT, JCCJ
[27] I agree with the judgment delivered by Pollard and Bernard JJ. I think,
however, that it would be useful and fitting to make some remarks about the
law of acquisitive prescription in Guyana from the perspective of
Roman-Dutch law which undoubtedly underlies much of its contents. More
particularly, my remarks are prompted by the puzzling fact that despite
several fundamental legislative changes in this area, the humming of the old
mantra of possession nec vi, nec clam, nec precario still reverberates,
almost incessantly, from the temples of Guyanese Justice as if time has
stood still.
[28] The concept of possession nec vi, nec clam, nec precario, usually
translated as possession of a thing not by force, nor by stealth nor by
consent (or, also, more positively, as of right) goes back to the Roman
Republic from before the Common Era. It was the kind of possession of things,
movable or immovable, which in the eyes of the Roman jurists deserved to be
protected against attacks and which, subject to certain conditions, could
properly be transformed into dominium or (full) ownership of the thing. The
concept is, inter alia, mentioned by Cicero in several of his writings (Pro
M. Tullius Oratio, 19-44, 45, en Pro A. Caecina Oratio,92). It can also be
found in the Institutes of Gaius, and, in "codified" form, in the Corpus
Iuris Civilis of Justinian (inter alia in the Institutes, Book IV, tit. 15,
4a, and, with respect to servitudes, in Digest 39.3.1.23).
[29] It is from these sources that it entered Roman-Dutch law which
basically governed Guyana until 1917 and, so far as incorporeal rights as
easements are concerned, through Bracton, Littleton and Coke, also English
law where it still survives in a quiet corner of the land law.
[30] Roman law knew several forms of acquisitive prescription the oldest of
which was called usucapio. Thereafter the praescriptio longi temporis and,
under Theodosius II, the praescriptio longissimi temporis (with a
prescription period of thirty years) were developed. The latter was actually
a combination of both acquisitive and extinctive prescription and is very
similar to the later Roman-Dutch institution of "lange verjaring" which
required a prescription period of one third of a century. Interestingly,
both in South Africa (where Roman-Dutch law is still the common law) and in
Guyana, a period of one third of a century was required in the case of
immovables (the thirty year period was in South Africa originally reserved
for movables until 1865 when it was adopted for both movables and immovables).[FN8]
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[FN8] C.G van der Merwe, M.J. de Waal and D.L. Carey Miller, International
Encyclopedia of Laws, Property and Trust Law, Supplement 2 South Africa,
Prescription, Nos.330, 331, LL.C. Dalton, The Civil Law of British Guiana, p.
30, see also Fenton H.W. Ramsahoye, The Development of Land Law in British
Guiana, pp. 249¬252, although incorrectly as to the original prescription
period in Guyana which he states was "a quarter of a century."
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[31] It is important to realise that in order to acquire dominium through
prescription, Roman-Dutch law neither required a legal title (justus titulus
or causa iusta) nor bona fides at the time possession of the land was taken.
[FN9] What was required, however, was a particular category of possession (possessio
civilis) in a certain form (nec vi, nec clam, nec precario) during the
prescription period. I will discuss these concepts later on but first I will
have a look at the way the legislature in Guyana has dealt with the subject
of acquisitive prescription. In that context it is also useful to observe
how other legislatures from mixed jurisdictions with a Roman-Dutch
background, notably those from South Africa and Sri Lanka, have dealt with
it.
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[FN9] Van der Merwe, op.cit. , No. 334, Silberberg and Schoeman, The Law of
Property, Fifth edn, LexisNexis Butterworths, pp. 160, 161.
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[32] Section 4(1) of the Civil Law of British Guiana Ordinance, 1916
provided that "(t)itle to immovable property . or to any easement, profit a
prendre, servitude or other right connected therewith may be acquired by
sole and undisturbed possession for thirty years." Although this provision
did not mention the nec vi, nec clam, nec precario requirement, Guyanese
jurists and courts kept reading these words into the text.[FN10]
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[FN10] See Dalton, op.cit., p . 31
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[33] This continued until 1952 when the Title to Land (Prescription and
Limitation) Ordinance, an amalgam of Roman-Dutch law and English law,
entered into force. Section 3 of this Ordinance (now an Act) provides that
title to land (other than State land or Government land for which the
prescription period is thirty years) or to any undivided or other interest
therein may be acquired by sole and undisturbed possession, user or
enjoyment for twelve years, if (1) such possession, user or enjoyment (a) is
established to the satisfaction of the Court, (b) was not taken or enjoyed
by fraud or by some consent or agreement expressly made or given for that
purpose, and (2) the Court is satisfied that the right of every other person
to recover the land or interest has expired or been barred and the title of
every such person thereto has expired (which would not be the case if the
person to whom such right accrued was a minor or of unsound mind in which
case the prescription period will be extended up to a maximum period of
thirty years).
[34] Initially, the Guyanese courts seemed to have acknowledged that this
change in the legislation meant the end of the nec vi, nec clam, nec
precario requirement and consequently of the need to plead it.[FN11] At some
point in time, however, the mantra appears to have emerged again in judicial
decisions. And the practice of pleading it in petitions for a declaration of
title to land seems never to have ceased. These Latin words can still
regularly be found in the affidavits of simple petitioners who want to
prescribe the land they are living on. This practice, whether based on the
law or not, does not therefore contribute to a truthful and relevant account
of the facts which are necessary to establish whether or not the petitioner
has properly acquired the ownership of the land he has in possession.
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[FN11] See eg Hughes and Stoby JJ in Inderjeet Tackorie v PortMourant Ltd
(1954), L.R.B.G. 111 and Luckhoo C (Ag) in Li v Walker (1968) 12 WIR p 126
----------------------------------------------------------------------------------------------------------------
[35] In South Africa the Roman-Dutch prescription received its first
statutory underpinning in section 2(1) of the 1943 Prescription Act which
defined acquisitive prescription as "acquisition of ownership by the
possession of another's movable or immovable property ... continuously for
thirty years nec vi, nec clam, nec precario." This Act which actually
contained the sacred words themselves was superseded by the 1969
Prescription Act which did not reproduce them. Section 1 of that Act
provides that "(a) person shall by prescription become the owner of a thing
which he has possessed openly and as if he were the owner thereof for an
uninterrupted period of thirty years..". [FN12]
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[FN12] Van der Merwe, op.cit., Nos. 332,333, Silberberg and Schoeman, op.cit.,
p 161
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[36] In Sri Lanka (Ceylon as it was then called) prescription got a
statutory form as far back as 1822. Section 3 of the Prescription Ordinance
(No. 22 of 1871), now an Act, requires for positive prescription "undisturbed
and uninterrupted possession . by a title adverse to or independent of the
claimant or plaintiff (that is to say, a possession unaccompanied by payment
of rent or produce, or performance of service or duty, or by any other act
by the possessor, from which an acknowledgement of a right existing in
another person would fairly and naturally be held)."[FN13]
----------------------------------------------------------------------------------------------------------------
[FN13] David L. Carey Miller, Three of a kind? Positive Prescription in Sri
Lanka, South Africa and Scotland, in Electronic Journal of Comparative Law,
vol.12.1 (May 2008), pp. 1-21
----------------------------------------------------------------------------------------------------------------
[37] It is clear, therefore, that in none of the Roman-Dutch based mixed
legal systems the nec vi, nec clam, nec precario mantra has eventually
survived in a legislative form. This gives rise to the question whether,
perhaps, it may have survived in another way and if so, to what extent?
NEC VI:
[38] In Roman law stolen property (res furtivae) or property obtained by
force (res vi possessae) could never be acquired by prescription, at least
not by the thief or robber himself. This seems to have been the position
also in early Roman-Dutch law, although as early as the 17th century there
have been jurists who were of the view that prescription could also run in
favour of a thief or a robber (Mattheaus, De Auctionibus 2 7 84 84; Paroemia
9 2 3). Later the original position was completely abandoned. It has long
since generally been accepted by the Roman-Dutch writers that stolen
property or property obtained by force or violence can be acquired by the
thief or robber provided that he subsequently possesses it without force and
openly for an uninterrupted period of thirty years or a third of a century,
as the case may be.[FN14] This was the position of the Roman-Dutch law when
the Civil Law Ordinance, 1916, came into being. Therefore, at that point in
time the question whether possession of the land was acquired by force or
violence had long since become irrelevant (as was recently affirmed for
Guyanese law by this Court in the case of Toolsie Persaud v Andrew
Investments Ltd and Others)[FN15]. The question was simply whether the
possession of the land itself was "without force." And in South Africa,
after 1969, even that requirement was abolished.
----------------------------------------------------------------------------------------------------------------
[FN14] Van der Merwe, op.cit., No. 336, Silberberg and Schoeman, op.cit., pp.
164, 165
[FN15] (2008) 72 WIR 292, CCJ Appeal No. CV 1 of 2007
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[39] As stated above, the Guyanese legislation requires the possession to be
"undisturbed." At first sight, this would suggest that in Guyana the nec vi
requirement might have survived in that particular form. Undisturbed
possession is however not synonymous with nec vi or peaceful possession. It
may be recalled that in Sri Lanka "undisturbed and uninterrupted possession"
is required for acquisitive prescription. It appears that the former
expression is more or less subsumed in the latter one: "Neither the statute
nor the Sri Lanka courts have adverted to the need to prove possession nec
vi in order to acquire a prescriptive title. It appears, therefore, that the
use of force in the possession of property will not jeopardize a
prescriber's claim to title."[FN16] In Shaw v. Garbutt, an Australian case,
Young J. after an extensive review of authorities from India, Canada and the
USA concluded that "peaceable possession" was synonymous with "uninterrupted
possession."[FN17] It is particularly in this sense that the possession must
be "continuous."
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[FN16] Shirani Ponnambalam, "'Adverse Possession' - A Basis for the
Acquisition of Title to Immoveable Property"
(1979) 5 Colombo Law Review 57, 67 as quoted by Carey Miller, op.cit., p 12
[FN17] [1996] NSWSC 400 (3 September 1996)
----------------------------------------------------------------------------------------------------------------
[40] It would seem that such is also the position in Guyanese law. As
follows from section 11 of the Title to Land (Prescription and Limitation)
Act, an interruption can either be in the form of an entry or actual
dispossession (other than a formal entry) or abandonment, or in the form of
an action to recover the land (to be distinguished from a mere claim on the
land). In Roman-Dutch law (and in civil law in general) these forms of
interrupting the prescription are called natural interruption on the one
hand and civil or judicial interruption on the other hand. It is trite law
that the latter can only materialise if the action is successful and if it
is acted upon. It is equally trite law that the action can only be
successful if it is brought against the person who is actually prescribing
through possession.[FN18]
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[FN18] See also this Court's decision in the Toolsie Persaud case at [43]
and [44]; for the position in civil law, see eg the French Code Civil,
section 2244: "Une citation en justice, meme en refere, un commandement ou
une saisie, signifies a celui qu'on veut empecher de prescrire, interrompent
la prescription ainsi que les delais pour agir."
----------------------------------------------------------------------------------------------------------------
NEC CLAM:
[41] The Guyanese legislation does not mention as a requirement for
prescription that the possession has to be "open" or "notorious", even
though it does say that possession of the land should not have been "taken
or enjoyed by fraud" which indicates that the possession should not be "concealed."
Apart from these express words, it would seem that the legislation clearly
implies that the possession of the land must have been open and for everyone
to see. This flows from the definition of possession both in the common law
sense of adverse possession as in the civil law sense of possessio civilis.
Both concepts have a factual component and a mental component: (1) actual,
effective and therefore visible control over a thing and (2) a certain
intention or animus which will have to be manifested by conduct and
utterances which are usually the same acts that constitute the required
level of control.[FN19] It also flows from the fact that the kind of
possession capable of being upgraded to "ownership" will, at least as a rule,
commence at the same moment that time starts to run for the "true owner" to
file an action against the prescriber. It is obvious that this would imply
that the "true landowner" should at the very least be able to know that the
clock is ticking for him so that he "can know that he must take action to
recover his land"[FN20]. This would not be possible if the required "adverse"
possession is not visible.
----------------------------------------------------------------------------------------------------------------
[FN19] For the Roman-Dutch position see Van der Merwe, op.cit., No. 335, and
Silberberg and Schoeman, op.cit., pp. 161, 162; for the English position see
S. Jourdan, Adverse Possession, Tottel Publishing Ltd 2007, reprinted 2008,
pp. 111, 112
[FN20] Toolsie Persaud v Andrew Investments Ltd and Others, at [30]
----------------------------------------------------------------------------------------------------------------
[42] More generally, the main rationale for prescription is that ownership (the
legal situation) and possession that manifests itself as ownership (the
factual situation) should not be separated for too long as this creates
legal uncertainty and subsequently litigation. Ergo, if the possession could
be enjoyed secretly, acquiring ownership by prescription would have no
justification. The nec clam or open possession is therefore by definition
required.
NEC PRECARIO:
[43] In Roman law this requirement had a rather strict and narrow meaning.
The original precarium was "a prayer on the part of the suppliant to use the
owner's property until the permission, if given was revoked."[FN21] Such a
precarious consent or revocable permission would in English law be called a
licence. In Roman-Dutch law as it originally developed in South Africa, a
broader concept of nec precario was used: the right must have been exercised
adversely and as of right, without permission or without consent in the
wider sense.[FN22] Clearly, this insertion of "adverse user" was influenced
by English law, which also, albeit somewhat differently, left its marks on
the Roman-Dutch law of Guyana. Both before and (many years) after 1917 the
Guyanese courts 'gave to the term "adverse possession" the same meaning that
the English courts had given to those words, prior to .. .1833.'[FN23]
----------------------------------------------------------------------------------------------------------------
[FN21] Van der Merwe, op.cit., No. 338, Silberberg and Schoeman, op.cit., p
166, see also Lord Rodger of Earlsferry in R (Beresford) v Sunderland City
Council, [2004] 1 All ER 160 at [57]
[FN22] This was apparently also the position in Guyanese law, see Inderjeet
Tackorie v Port Mourant Ltd, (1954) L.R.B.G. 111
[FN23] Cadogan v Cadogan (1955), L.R.B.G. 7
----------------------------------------------------------------------------------------------------------------
[44] As we have seen, the nec precario element has been eliminated in South
Africa in 1969 but according to authoritative South African jurists this did
not really change anything.[FN24] Even under the 1943 Act the nec precario
provision was held to be unnecessary because the possession required for
prescription was the possessio civilis which is defined by the South African
courts as consisting of (1) actual, effective and physical control of the
thing accompanied with (2) the intention to hold the thing as his own (animus
domini) or, at its lowest, as the intention of keeping the thing for oneself
(animus rem sibi habendi).[FN25] Both forms of intention are clearly
inconsistent with the intention of a precarious possessor. In the words of
Watermeyer CJ in Malan v Nabygelegen Estates [1946]: "In order to create a
prescriptive title, such occupation [nec vi nec clam nec precario] must be a
user adverse to the true owner and not occupation "by virtue of some
contract or long relationship such as lease or usufruct which recognises the
ownership of another"[FN26]
----------------------------------------------------------------------------------------------------------------
[FN24] Van der Merwe, op.cit., No. 340, Silberberg and Schoeman, op.cit., p.
166
[FN25] Siberberg and Schoeman, op.cit., pp. 279, 280
[FN26] 1946 AD at 574. For a discussion of this judgment, see Van der Merwe,
op.cit., No. 338 and Silberberg and Schoeman, op.cit., pp. 166, 167
----------------------------------------------------------------------------------------------------------------
[45] The relevant Sri Lanka legislation[FN27] uses the term "title adverse
to or independent of' the owner of the land, further explained as "a
possession unaccompanied by payment of rent or produce, or performance of
service or duty, or by any other act by the possessor, from which an
acknowledgement of a right existing in another person would fairly and
naturally be inferred." Lord Wilberforce in Nonis v Peththa called this "in
effect a definition of what is commonly, for convenience, referred to as
adverse possession."[FN28]
----------------------------------------------------------------------------------------------------------------
[FN27] See [10] of this judgment
[FN28] (1969) 73 NLR 1,3
----------------------------------------------------------------------------------------------------------------
[46] Most South African and Sri Lankan jurists seem to agree that there is
no real distinction between adverse possession and possessio civilis.[FN29]
There is, however, some difference of opinion with regard to the mental
element of the required form of possession. In English law, where it is also
held that the possession required for "acquisition through prescription" has
both a factual and a mental element, the latter is described as the animus
possidendi or the intention to possess. Interestingly, it appears that this
requirement of animus was never part of English land law and has only at a
fairly late stage (1899) been introduced in English law under the influence
of the civil law and more particularly of the German jurists Von Savigny and
Jhering.[FN30] Curiously, the term animus possidendi is also used in
Guyanese land law. But this does not seem to be correct as this concept is
clearly linked to the English common law system of relativity of title, with
an, at least originally, weak system of deeds registration and, therefore, a
central role of what the Roman-Dutch writers would call the possessio
naturalis or actual possession. Guyanese law, however, has expressly
maintained a system of allodial (full and absolute) ownership together with
a relatively simple and in principle fairly certain, although admittedly far
from perfect, system of registration of titles to land (as evidenced by the
Deeds Registry Act[FN31]). In such a system the requirement of an animus
domini or animus rem sibi habendi would be more appropriate.
----------------------------------------------------------------------------------------------------------------
[FN29] Van der Merwe, op.cit., No. 340, Silberberg and Schoeman, op.cit., p.
167, Carey Miller, op.cit., p. 15
[FN30] Lord Lindley seems to have been the first English Judge to have used
this term in a judgment : Littledale v Liverpool College [1900] 1 Ch 19 at
23; see about the "German roots" of this "legal transplant": Oliver Radley-
Gardner, Civilized Squatting, in Oxford Journal of Legal Studies, Vol. 25,
No. 4, pp. 727-747
[FN31] Registration of land under the Land Registry Act, Cap. 5:2, is
clearly more secure; acquisitive prescription of such land is, however, also
much more difficult, see sections 106 - 110 of that Act
----------------------------------------------------------------------------------------------------------------
[47] In the Toolsie Persaud case this Court cautiously steered away from the
animus possidendi concept as it has sometimes been misinterpreted, a
misinterpretation which led the Chief Justice in that case in a wrong
direction. In this context it should be remarked that in Roman-Dutch law the
animus domini or the intention to hold as an owner is clearly distinguished
from what is called the opinio domini or the belief that one is in fact the
owner[FN32]. It is trite law that one can have the required animus with or
without having the opinio. This follows logically from the fact that bona
fides is not a requirement for acquisitive prescription. Both English law
and Roman-Dutch law agree on this point.[FN33]
----------------------------------------------------------------------------------------------------------------
[FN32] Silberberg and Schoeman, op.cit., pp. 162, 281
[FN33] For the English position, see Jourdan, op.cit., pp. 166-168
----------------------------------------------------------------------------------------------------------------
[48] It is telling that this Court in the Toolsie Persaud case when
referring to the English leading case of JA Pye (Oxford) Ltd v Graham
specifically endorsed only a limited part of Lord Browne-Wilkinson's leading
speech in which he inter alia described the intention to possess as "an
intention to exercise such custody and control on his own behalf and for his
own benefit, independently of anyone else except someone engaged with him in
a joint enterprise on the land." This description was without any doubt
adequate to deal with the case then at hand. But in a more general sense,
the position which, in my view, is to be preferred in Guyana, can be found
in the speech in Pye given by Lord Hope of Craighead who - it is to be noted
- also hails from a mixed jurisdiction (Scotland). Lord Hope said:
"(...) it is reasonably clear that the animus which is required is the
intent to exercise exclusive control over the thing for oneself. The only
intention which has to be demonstrated is an intention to occupy and use the
land as one's own. This is a concept which Rankine The Law of Land-Ownership
in Scotland (4th edn, 1909) p 4, captured in his use of the latin phrase 'cum
animo rem sibi habendi' (see his reference in footnote 1 to Savigny Das
Recht des Bezitses)... It is similar to that which was introduced into the
law of Scotland by the Prescription Act 1617, Ch 12 relating to the
acquisition of an interest in land by positive prescription. So I would hold
that, if the evidence shows that the person was using his land in the way
one would expect him to use it if he were the true owner, that is enough."[FN34]
----------------------------------------------------------------------------------------------------------------
[FN34] At [71]
----------------------------------------------------------------------------------------------------------------
[49] Both the speech of Lord Browne-Wilkinson (as far as we endorsed it in
Toolsie Persaud) and, particularly, Lord Hope's speech come very close to
the Roman-Dutch position in the mixed jurisdictions of South Africa ("as if
he were an owner") and Sri Lanka ("independent of') with its focus not so
much on intention as such but on intention as it is manifested by conduct.
It is therefore undoubtedly the appropriate position in the mixed land law
of Guyana. I would add that when giving a definition of the required
intention it should always be remembered that the contents of such a
definition depend on the context in which it is to be used. In cases like
these, it is only for the purpose of prescription that the intention of the
possessor has to be defined. Clearly, when one must define possession and
its mental element, for example, for the purpose of defending the possessor
against trespass, another approach might be called for.[FN35]
----------------------------------------------------------------------------------------------------------------
[FN35] Silberberg and Schoeman, op.cit., pp. 279-284; in English law this
would be one of the many "heresies" mentioned by Lord Browne-Wilkinson in
his speech in Pye
----------------------------------------------------------------------------------------------------------------
[50] The Title to Land (Prescription and Limitation) Act is to a certain
extent a not altogether successful attempt to mix Roman-Dutch prescription
oil with English limitation water. Interestingly, before 1833 English case
law required "adverse possession" in the old sense which meant something in
the nature of an ouster, acts clearly against the will of the "true owner".[FN36]
Persons who were in exclusive possession of land with the consent of the
owner were held to be tenants at will and therefore not in adverse
possession. Equally a person whose possession of the land was at first
lawful (eg based on a lease) did not become an unlawful possessor after the
period when he was in possession by right. Although wrongful, the possession
was described as one under a tenancy by sufferance.[FN37] The label "tenancy"
in these cases was used only to create a situation which in Roman-Dutch
terms would be a possession "velprecario." As long as this situation
continued, the owner did not have to fear that he would lose his property
rights. The time for him to take action would only start to run when he
formally ended his express or implied consent (in the latter case:
acquiescence), thereby turning the "tenant's" possession into one of "nec
precario." It appears that given the rather weak system of registering deeds
that at that time existed in England, it was sometimes difficult, certainly
when many years had gone by, to decide if and when the owner's consent had
ceased. It is probably for that reason that the English Real Property
Limitation Act 1833 (in section 7), one might say rather arbitrarily,
introduced the fiction that in the case of a tenant at will, the owner's
consent was deemed to have ceased one year after the tenant had taken
possession.[FN38] This provision was reproduced in the Real Property
Limitation Act 1874 and the Limitation Act 1939 (s. 9(1)) which latter Act
provided most of the provisions of the Guyanese Act[FN39] including section
9 (1) which deals with a tenancy at will.
----------------------------------------------------------------------------------------------------------------
[FN36] Jourdan, op.cit., p. 23
[FN37] Jourdan, op.cit., p. 24
[FN38] See Sampson Owusu, Commonwealth Caribbean Land Law,
Routledge-Cavendish, 2007, p. 270
[FN39] Ramsahoye, op.cit., p. 251
----------------------------------------------------------------------------------------------------------------
[51] In the course of time, notably as from the 1950s, this provision became
more and more problematic in England. It can be assumed that this was
prompted by the fact that the line between a licence and a tenancy at will
had become rather thin as it was gradually accepted that licensees could be
given exclusive possession of land and that regular payments by the licensee
to the licensor would as such not always be at odds with characterizing the
relationship as a licence. This being the case, it is clear that the
provision under discussion, which created a favourable position only for the
tenant at will and not for the licensee (in the sense that it made it rather
easy for the tenant at will to become the owner of the land in the event
that the true owner was not vigilant enough), led to a substantial
difference in treatment of persons holding land with permission or consent
of the owner which would eventually be seen as thoroughly unjust.[FN40] More
generally, it can be assumed that under the growing influence of human
rights law, inter alia, promoting the protection of persons against
arbitrary deprivation of property and the corresponding balancing of
interests, gradually more weight was given to the interests of the owners of
land.[FN41]
----------------------------------------------------------------------------------------------------------------
[FN40] Jourdan, op.cit., pp. 583-597; Owusu, op.cit., pp. 542-569
[FN41] As became very clear when the Pye case reached the European Court of
Human Rights, see JA Pye (Oxford) Ltd v United Kingdom, (2006) 43 EHRR 3 and
(2008) 46 EHRR 45 (Grand Chamber); for its impact on English land law, see
Beaulaire Properties Ltd v Palmer (2005) 4 All ER 462
----------------------------------------------------------------------------------------------------------------
[52] As a result of these developments the provision as to tenancies at will
was abolished by section 3(1) of the English Limitation Amendment Act 1980
so that tenants at will are now in the same position as the licensees were
before that Act came into being. In Guyana, however, the provision, which
was alien to the existing system of land law from the very start, is still
part of the law. Seen against the light of the developments in the land law,
especially with regard to the fading borders between licences and tenancies
at will, there is at least a presumption that, in case of doubt, the
relationship between the land owner and the person occupying the land with
his permission should, as a rule, be categorized as a licence. This is the
more so where the parties are closely related and the relationship appears
to be a family arrangement as in the case before us.
[53] Such an approach will both be in line with the Roman-Dutch roots of
Guyanese land law and, I may add, the Guyanese Constitution. Section 142(1)
of the Constitution clearly considers the protection from arbitrary
deprivation of property as a fundamental right worthy of the highest form of
judicial relief. It is equally clear that this right is not without
exceptions. Properties can be taken "under the authority of a written law"
and nothing done under the authority of "any law with respect to the
limitation of actions "shall be held inconsistent with" that fundamental
right (section 142 (2)(a)(vi) of the Constitution) . But because of the very
fact that it constitutes an exception to such a fundamental right, the Title
to Land (Prescription and Limitation) Act and its provisions have to be
interpreted in a way that will be in keeping with its character as an
exception. The interpretation has to be such that the property rights of
owners will be preserved as much as reasonable. True, exceptions to
fundamental rights are generally possible and even necessary but the written
law which embodies them will have to contain what I have called elsewhere[FN42]
"adequate safeguards against irrationality, unreasonableness, fundamental
unfairness or arbitrary exercise of power." If such safeguards are palpably
lacking, such a law, or parts of it, might, although complying with the
formal requirement of being a "written law", still be unconstitutional (which
might be arguable if, for example, the legislator would decide to limit the
prescription period to one year or if he would expressly allow prescription
by concealed possession of land). Be that as it may, at the very least, the
interpretation of those provisions should be such as to limit arbitrary
deprivation of property as far as possible.
----------------------------------------------------------------------------------------------------------------
[FN42] Attorney-General v Joseph and Boyce, (2006) 69 WIR at p. 226
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