The Caribbean Court of Justice (CCJ) has ruled in favour of Raymond Joseph over a tract of land at Black Bush Polder, Corentyne and has ordered the Registrar of Lands to issue a new certificate of title to him within six weeks.
Decisions by the High Court and the Court of Appeal here were set aside as a result of the CCJ decision made on Thursday.
Costs were also awarded to Joseph against the respondent, Kamal Mangal which means that an outstanding amount from Joseph to Mangal for the land in question will be cancelled out.
Mangal was not represented at the hearing by the Trinidad-based court despite being served and given the opportunity to be heard, the decision noted.
Joseph had agreed to purchase “all the vendor’s rights, title and interest, in and to homestead No. H.S. 55 Yakusari south, Black Bush Polder, with a small house” that Mangal held on a lease from the State. Subsequently, Mangal, assisted by officers of the Guyana Lands and Surveys Commission (GLSC), obtained a certificate of title for the same land. Mangal then issued proceedings to recover possession from Joseph. The CCJ noted that both the trial court and the Court of Appeal found that the “Respondent (Mangal) had acted fraudulently and that the officers of the Commission (GL&SC) were lax, as held by the trial judge, and deliberately deceitful, as held by the Court of Appeal. However, the courts below held that the Appellant (Joseph) was only entitled to remain in possession for the remaining time on the lease.” Joseph appealed against the order of the Court of Appeal that he surrender possession as the remaining time on the lease had expired. He contended that he should have title to the relevant land.
According to the facts of the case outlined by the CCJ, Mangal was granted a 25-year lease of homestead site on 29th June, 1981. Later, he emigrated to the United States. On 23rd April, 1983, he appointed his brother, Inderjit Poonwah, to be his attorney with power to dispose of the property.
On 16th May, 2003, Joseph entered into a written agreement with Poonwah, in his capacity as attorney for Mangal, to purchase all of Mangal’s “rights, title and interest, in and to” the homestead site for GY$600,000. In the agreement for sale, there was acknowledgement that GY$475,000 had been paid.
Both Joseph and Poonwah attended the offices of the Commission and filed all the relevant documents that were required to effect the transfer of the lease to Joseph. Transfer duty and fees were paid, receipts of which were tendered in evidence. The trial judge found that the sale had been lawfully done and that the parties had complied with the required rules to effect transfer but the transfer did not take place.
Joseph entered into possession of the homestead, planted crops and trees and erected a dwelling. During the trial, evidence was presented that Joseph had made improvements to the property valued at GY$3,500,000. Mangal visited Guyana and confronted Joseph, who he said was well known to him, and Joseph showed him the agreement for sale and the receipts for his payment.
Said the CCJ: “It may be that the real issue was revealed when the Respondent (Mangal) testified that his brother and attorney had not told him about the sale nor given him any money in respect of the purchase price. Later in 2003, he filed a case against the Appellant (Joseph) for possession of the property. On 6th October, 2006, the case was discontinued and Mangal was ordered to pay the costs of Joseph. However, while that case was pending, on 8th February 2005, Mangal obtained a certificate of title to the homestead site from the Registrar of Lands, pursuant to section 71 of the Land Registry Act, Cap 5:02.
Mangal then commenced proceedings in the High Court on August 8th 2005 to recover possession of the land and Joseph defended the action on the grounds that he had purchased it legitimately and counterclaimed for specific performance.
The trial court heard the case and delivered judgment on 26th September, 2011. The judge found that the sale was lawful. However, although the intention clearly was that the homestead site was being sold outright, Mangal’s attorney could only have sold what Joseph had; and that was the remainder of the lease. The court determined that after Mangal had obtained the certificate of title, Joseph became a tenant or licensee of Mangal. The judge found that at the time the action was filed, the lease had not expired so the claim for trespass was premature, and it would be unconscionable to order Joseph to vacate the land and, accordingly, dismissed Mangal’s claim. With regard to the Joseph’s counterclaim, the judge found that the Mangal had acted dishonestly and fraudulently in acquiring title in full knowledge that Joseph had bought the remainder of the lease. While the trial judge criticised the GL&SC for the transfer of title to Mangal after taking the fees to transfer it to Joseph, it concluded that the fact that the GL&SC was not a party to the action limited the court’s options and dismissed the counterclaim.
Mangal appealed to the Court of Appeal. On 25th April, 2015 and judgment was delivered. The court expressed the view that there was no doubt that Joseph was the victim of deliberate deceit and dishonest dealings by officers of the GL&SC. However, having accepted the findings of fact and law of the trial judge, it concluded that it would have been more prudent to have awarded possession at the expiration of the period of the lease, and in the circumstances, the relevant time having elapsed, ordered that Joseph vacate the property. Joseph obtained a stay of execution and after failing to obtain leave to appeal from the Court of Appeal, applied to the CCJ for Special Leave to appeal. The CCJ then ordered that the Application for Special Leave should be treated as the hearing of the appeal.
Absolute interest
The CCJ in its decision said that the agreement was to sell “all the vendor’s rights, title and interest, in and to homestead No. H.S. 55 Yakusari south, Black Bush Polder, with a small house”. Thus, it said that the vendor was selling whatever rights he had without stating what they were. Those rights amounted to his leasehold interest combined with his rights under the lease and his right to apply to have a certificate of title to an absolute interest in the land. It was upon this point that the CCJ found that Joseph had properly purchased more than just the remainder of the time on the lease.
The CCJ said that the status of Mangal was that of lessee, with the State being the lessor. The rights that were sold were the rights of a lessee. The lease specified in clause 17 that the transfer of those rights required the permission of the Commissioner (of the GL&SC) and the courts found that the permission was granted. The State did not surrender its rights as lessor to Mangal, who did not acquire the rights of the State.
The CCJ said this is further clarified by an examination of the lease which reveals that the vendor’s rights, title and interest were much more than the unexpired term on the lease. As an example, the CCJ said that paragraph 18 of the lease provides that on termination or expiration of the lease, the lessee shall be entitled to receive compensation for improvements to the land, including growing crops; fruit trees, and permanent buildings, provided that the Commissioner had agreed in writing to their construction.
“This is an important right and interest which the Appellant (Joseph) had purchased. On termination or expiration of the lease, he was entitled to compensation for his improvements of crops, trees and buildings.
“Clause 24 of the lease is even more important. It provides for the lessee to renew the lease for further terms of twenty-five years continuously. The State would have been lessor in perpetuity. This clause contained rights, title and interest which were included in the sale. It necessarily implies that the Appellant (Joseph) was sold the right to have the lease renewed.
“The evidence of the Land Administration Officer that the last lawful lessee was entitled to become a registered proprietor confirmed that the grant of a certificate of title was a right of the lessee. The State policy to convert the lease into a certificate of title constituted a major right, title or interest. It was, in effect, an improvement on clause 24 of the lease. It entitled the leaseholder to convert his lease into a registered proprietorship with indefeasible title to the property. This provided many additional benefits to the landholder, including the removal of the obligations contained in the lease and better commercial and developmental options. This was a right attached to the status of a leaseholder and must have been included in the phrase `all rights’”, the CCJ said in its ruling.
The CCJ said that the High Court and the Guyana Court of Appeal “erred in concluding that the only rights, title and interest the Respondent (Mangal) had at the time the sale was concluded was the remaining term of years on the lease. The rights he had included the right to the value of the improvements on the land conferred by clause 18 of the lease, and the right to continuous renewals of the lease conferred by clause 24, a right which was converted by State policy to a right to become registered as proprietor under the Land Registry Act.
“We therefore had to overturn the interpretation of the agreement for sale that was given by the trial court and approved by the Court of Appeal. The phrase `all rights, title and interest’ includes the right to receive a certificate of title in accordance with the State policy for lease holders in Black Bush Polder”, the CCJ said.
The CCJ further said that although this was a case where the questions of title to the land came under the Land Registry Act, the courts below did not examine the relevant provisions of the Act and apply them to the factual findings that they made. The top court said that under Section 61 (a) of the Land Registry Act the court is empowered to rectify a registration which has occurred as a mistake as in the extant case. Neither the trial judge nor the Court of Appeal applied this section, the CCJ pointed out.
The CCJ’s decision was as follows:
(i)The Appeal is allowed and the Orders of the Courts below set aside.
(ii) The existing Certificate of Title to Land No. 2004/712 in the name of Kamal Mangal for land situate at Zone: 631, Block: 631314, Parcel: 55, portion of South Yakusari, Black Bush Polder, Corentyne, Berbice, Guyana is declared to be of no effect whatsoever on the grounds of fraud and mistake of fact pursuant to section 61, Chapter 5:02, Land Registry Act, Guyana.
(iii) The Registrar of Lands do, within six weeks from the date hereof, –
- Rectify the Register in relation to the said, Zone: 631, Block: 631314, Parcel: 55, portion of South Yakusari, Black Bush Polder, Corentyne, Berbice by replacing Kamal Mangal, the current title holder with Raymond Joseph as registered proprietor; and
- Issue a new Certificate of Title to Land in respect of the said land situate at Zone: 631, Block: 631314, Parcel: 55, portion of South Yakusari, Black Bush Polder, Corentyne, Berbice, pursuant to section 71 of Chapter 5:02, Land Registry Act of Guyana.
Further, Joseph is to pay Mangal the sum of GY$125,000 outstanding for the transaction to be set off against the order for the payment of costs by Mangal to Joseph. The costs awarded to Joseph against Mangal at the High Court and Court of Appeal totaled GY$1.94m.
Sanjeev Datadin and Jamela Ali appeared for Joseph at the CCJ.
