The law is unjust in relation to the non-recognition of equitable interest in immovable property in Guyana

Dear Editor,

A recent article of mine appeared in the West Indian Law Journal (WILJ) which is published by the Norman Manley Law School in Jamaica. This article sought to call urgent attention to an unjust state of our law in relation to the non-recognition of equitable interests in immovable property in Guyana.  It follows Jeremy Bentham’s jurisprudential maxim to “obey [the law] punctually, but censor freely”!

First I quoted a plea from God through the prophet Jeremiah, following which I wrote that if it were to be adapted to the title of the article, it might very well read as follows: ‘Is there no recognition of conscionable conduct, and simultaneous rejection of unconscionable conduct, in transactions touching and concerning immovable (real) property in Guyana, consequent upon the recent decision of the CCJ in the case of Ramdass v Jairam et al (2008)’?

The CCJ essentially held in Ramdass that: “As stated earlier and now re-emphasised, dicta from a formidable array of cases of older as well as more recent vintage lead to the inevitable conclusion that equitable interests in immovable property are not recognised and cannot be acquired in Guyana.” The main thrust of the article was to reject, most respectfully but in the strongest possible terms, both the conclusion and reasoning of the court in this case.  Hence, it was submitted, “with the greatest of respect, that, given the existence of very strong and persuasive dicta which held to the contrary, that the decision in Ramdass was certainly not inevitable.  Moreover, it is further most respectfully submitted that, in the circumstances of this case the decision on the recognition or non-recognition of equity in this context was, also, avoidable, because Ramdass  was not entitled to the discretionary remedy of specific performance since title was already transferred, by transport, to someone else – such title thereby becoming indefeasible except for fraud, which latter defence was abandoned and not proven; and, further, that whatever ‘interest’ he may have obtained was not cognizable simply because it was not registered within the terms of the Deeds Registry Act.

The article, in its conclusion,  referred to the noble intention of the legislature of the then British Guiana in enacting the Civil Law of British Guiana Ordinance in these terms: “I have come to appreciate that the primary intention of the Legislature in enacting the Civil Law of British Guiana Ordinance, now the Civil Law of Guyana Act, Chapter 6:01, was to retain and combine some of the best features of one great body of law, i.e., the Roman-Dutch law, with the general features of another great body of law, namely the English common law.  It is indeed a noble and lofty ideal and Guyanese jurisprudence ought to be the richer and the greater, not the poorer or lesser, for it.  But have we achieved that ideal?  Have our lives, in particular our conscionable conduct, been enriched by this attempt to combine the best of these great bodies of law?

I would like to submit that, nearly a century after the enactment of the Civil Law of British Guiana Ordinance, the time has come for us to make a full and frank assessment as to whether we may have achieved our original ideal.

For my own part, I would like to contend, most forcefully and respectfully, that rather than achieve that ideal, we have been weighed in the balance and found greatly wanting because we have fallen woefully short of what remains a very commendable ideal.  If the CCJ is right in its interpretation of the Civil Law of Guyana Act, Chapter 6:01, about the rights of the full and absolute owner of transported property in Guyana, then it means that that full and absolute owner does not have the power, except by statute, to create equitable interests in his own property and for his own purposes.  I would like to suggest that such a full and absolute owner of transported property in Guyana is in a much poorer position than his counterpart in other jurisdictions where this principle of interpretation does not apply.

On the other hand, to paraphrase the great poet and philosopher, Shakespeare, I and others like me… have been robbed of that which is necessary for the upholding of the integrity of our good consciences and conscionable conduct and, therefore, makes us poorer; while, at the same time, it enriches no one, more particularly, the deprived ‘beneficial’ owner of immovable property in Guyana.  Furthermore, it helps to create a climate which is fraught with fraudulent or unconscionable conduct.”

Yours faithfully,
Prof Calvin Eversley