Canal No.2 woman wins prescriptive rights land case at CCJ

The Caribbean Court of Justice in Port of Spain, Trinidad & Tobago.

The Caribbean Court of Justice (CCJ) yesterday set aside a 2008 Guyana Court of Appeal (GCA) decision in a Guyanese land dispute case and awarded prescriptive rights to a family who had been cultivating lands at Canal No. 2, West Bank Demerara for over 40 years.

Rajpattie Thakur in her capacity as Exectrix of the will of Dolarie Thakur aka Dolarie Takur sought relief at the Trinidad-based final court after the GCA overturned a decision made in Thakur’s favour by the High Court because of false statements and non-disclosure of facts.

Deodat Ori who had bought the land in 1997 from Basil Basdeo was listed as the respondent. The land had been sold to Basdeo for nonpayment of rates and taxes.

In a media release, the CCJ said that it has ordered that Thakur in her capacity as the executrix of the will of her mother be declared the rightful owner of land at Plantation Mon Desir, Canal No. 2 West Bank Demerara in Guyana. The disputed land, it was explained had been used as a farm by the family for over 40 years.

Bissoon Thakur who was Thakur’s father and the appellant’s mother went into occupation of the land in the 1970’s, with the permission of the owner of the land, Prince Maison. Bissoon planted various crops without interruption until 1982 when the land was sold to Basdeo

That same year, the release said, Basdeo obtained a transport, a document under Guyanese law which transfers the ownership of the land and upon discovering the Thakurs’ occupation, threatened Bissoon with legal action to remove him from the land. “Mr. Thakur ignored the threat but sought assistance from local bodies and Mr. Prince Maison to remain on the land”, the release said.

It was explained that Basdeo’s threat to sue never materialized and the family, remained on the land until it was sold to Ori in 1997.

A written version of the judgment which is available on the court’s website indicated that Bisson died in 1991 and his wife in 2003.

When Ori visited the land later that year, he found Thakur’s brother, Jaipaul, on the land and asked him to vacate the land then, and again in September 1997.

The Thakur family during their years of occupation had cleared the land of trees and bushes, dug drains and trenches, made same and built a large strong bridge from the property to the road. They had also cultivated the land with sugar cane, pineapples, coconut trees and a wide assortment of crops and reared cattle and pigs. The CCJ release informed that two High Court actions were then instituted: including one by Basdeo and  Ori against Jaipaul for trespassing on the land. The second High Court action was filed by the appellant and Jaipaul, where they sought a declaration that they were legally entitled to farm the land. They also filed a petition for prescriptive title in 2002, which allows a person to apply for a title for land under stated conditions, though this was later withdrawn. Ultimately, the petition to which this appeal relates was filed in 2003.

This family’s continued farming of the lands following the deaths of the husband and wife was supported by two persons including a neighbour. One of the witnesses had told the court that the farming continued after the husband and wife had died.

Required period

The release stated that at the Commissioner of Title proceedings, Land Court Judge, Rabindra Rooplall found that Thakur’s mother had continued possession of the land after her husband’s death in 1991 until her own death in 2003 which would meet the required period for a prescriptive title.

However, the Appellate Court in Guyana disagreed with Justice Rooplall that the requisite intention to be independent possessor of the land was proved. That court also felt that there were false statements and non-disclosures of facts by Thakur, and for that reason she should not have won the case.

The false statements and non-disclosures, pertained to Thakur’s failure to mention her mother’s occupation and possession until the second petition filed 2003.Ori accused the appellant of falsely disclosing that an injunction was obtained to restrain him in the second High Court action. The GCA in its ruling found that the false statements and non-disclosures of facts materials to the petition were grave and ought to have been fatal to the petition as they went to the root of the matter and were material to the relief claimed.  The CCJ was prepared to allow the appeal and set aside the declaration on this ground alone but decided to consider the merits for the sake of comprehensiveness and to avoid further litigation.

On the false statements and non-disclosures issue, the CCJ after a close examination of the record, disagreed with the GCA. The Court then considered whether Thakur was able to establish that her father and her mother had occupied the land from 1984 until their respective deaths and found that there “was more than enough evidence on record to support factual possession of the land at all material times”, in addition to an intention to hold the land as owner.

As such the order of the GCA was set aside and the order of the Commissioner of Title dated 14 July 2008, granting a declaration of title for the land in dispute to Thakur be reinstated. The CCJ also awarded basic costs for two attorneys to the Appellant.

The CCJ also made a firm comment in relation to the matter of prescriptive rights. It noted Ori’s concern that “the law of prescriptive title was being ridden like an unruly horse”.

“The Court reiterated its view from Bisnauth v Shewprashad that protection of property rights was of the utmost importance, but it has always been subjected to certain exceptions such as adverse possession. The court noted that this is the reason the law requires clear and convincing evidence to support a claim for prescriptive title and that there was evidence of the sufficient quality in this appeal. Under these circumstances, the Court said, using the words of section 18 of the Guyana Constitution “the land must go to the tiller”.

The applications were determined by Justices Jacob Wit, David Hayton, Winston Anderson, Maureen Rajnauth-Lee and Justice Denys Barrow. Thakur was represented by Attorneys Roopnarine Satram, Chandrapratesh Satram and Visal Satram while Anil Nandlall and Manoj Narayan represented Ori.

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