The Caribbean Court of Justice (CCJ) is presently considering an application made to reverse a decision it delivered on May 10th in a decades-long land dispute between two Essequibo brothers and retry the case, after a claim by the losing party that information was deliberately withheld from the court.
It is now being claimed that the respondent, Kowsal Narine, acquired a transport for the disputed land prior to the hearing and determination of the case by the Court of Appeal but never made mention of this to that court or the CCJ.
The post-judgement application, asking in part for the matter to be retried by CCJ, was filed on June 4th by attorney Anil Nandlall, who represents Narine’s brother, Deonarine Natram.
In delivering its judgment in the case of Narine versus Natram and former owners of the land Ashbourne Lipton Chan and Foster Gilford Chan, the CCJ, which is Guyana’s final appeal court, had ruled that Narine had been in “sole and undisturbed possession of the land since 1st June 1991 and that any title, right or interest of Deonarine had been extinguished pursuant to the Act.” The ruling affirmed a High Court decision made by Justice Roxane George, who had ruled that Narine had been entitled to the land through prescriptive rights.
The matter concerns 5.21 acres of land, which is located at Section ‘C,’ Golden Fleece, Essequibo.
Sunday Stabroek was reliably informed yesterday that the Trinidad-based court has asked both parties to file any additional written submissions if desired on or before July 31st as the court is minded to deliver its decision without a formal hearing shortly thereafter.
This newspaper understands that this is the first time in a Guyanese case that such a request is being made to the court.
Nandlall, in his application to the court, asked for the May 10th decision to be set aside and/or amended and/or varied; an order granting a rehearing of the appeal or, alternatively, that leave be granted to permit further arguments by the parties, more particularly the applicant, and such further or other orders which may be necessary and appropriate to prevent a miscarriage of justice.
Listed among the grounds for the application is the assertion that Narine deliberately withheld material facts from the CCJ, the Court of Appeal and the Commissioner of Title, which could have resulted in different outcomes.
It is being argued that there are errors of law disclosed in the decision; that the matters aforesaid have caused a miscarriage of justice through no fault of Natram, who is the applicant/first named respondent and that the CCJ being the court of final resort “has an inherent power to correct any injustice or any miscarriage of justice caused by an earlier decision of this honourable court.”
It is stated, too, that this power and jurisdiction is necessary to ensure justice between litigants and public confidence in the administration of justice and that this “fit and proper” case presents the requisite exceptional circumstances for the court to invoke the aforesaid inherent power.
In his affidavit, Natram stated that approximately one week after the court’s decision was delivered, he was informed by a staff at the Deeds Registry in Essequibo, who read a publication in the Stabroek News about the matter, that Narine had already acquired transport for the land.
“As a result of inquires I made, I secured a copy of the said Transport, No. 320 of 2014, dated 12th of June, 2014,” he said, before adding that he immediately delivered a copy of the document to his attorneys for their information, guidance and further actions, if any.
Natram informed that he was told by his attorneys that the transport was obtained while the Notice of Appeal filed against Justice George’s decision in the High Court was pending and, therefore, when that appeal was heard and determined, the Court of Appeal had already acquired transport but “did not disclose same… to the Court of Appeal or to this Honourable Court.” He said that what is significant is that the transport was acquired pursuant to an application made by petition for a Declaration of Title filed in the Land Court on 11th day of April, 2010 by Natram in his capacity as the Executor of the Estate of Nateram also known as Netram and Netram Daulta.
He noted, too, that in that petition and Affidavit in Support, the Respondent/Appellant pleaded and relied upon the allowed adverse possession and occupation of his father and his father’s estate and not his personal occupation, which he canvassed in the High Court, in the Court of Appeal and the CCJ.
Additionally, he said that application to the land court was granted by Commissioner of Title Rabindra Rooplall on April 24th, 2012, who ordered that Narine in his capacity as the Executor of the Estate of Nateram had acquired title to the land. The Order of the Court was registered as a Title under the provisions of the Title of Land (Prescription and Limitation) Act on the 7th day of March, 2014. Narine, it was stated, then caused the subject property to be transferred and conveyed from the Estate of Nateram over to and in favour of himself, personally, as the sole beneficiary of the said estate.
Natram said that in the petition, Narine, although making reference to the concluded High Court proceedings, deliberately withheld from the Commissioner of Title that an appeal was filed against the decision of Justice George and that Appeal was pending in the Court of Appeal.
“In short, the Respondent/Appellant deliberately withheld material facts from the Land Court, the Court of Appeal and this Honourable Court and accordingly, has perpetuated unilateral frauds upon all three of these courts,” the application argued.
Natram said that these “deliberate non-disclosures” were clearly calculated to mislead the courts and were those courts apprised of the withheld facts and materials, “there is every likelihood that the directions would have been different.”
Natram took issue with two parts of the court’s decision, which he described as errors in law. The first is the court saying that when Narine “commenced these proceedings on 27th, August 2002, he had not yet been in possession for twelve years” and the second, when it said that “The counterclaim was ineffective to stop time running in Kowsal’s (Narine) favour.”
The court in its ruling had explained that Narine and Natram’s father, Nateram, had entered into an agreement with the Chans, committing to pay $360 per acre for the purchase of 5.21 acres of land. Nateram had made a down payment, and was allowed to occupy the land on the condition that the remainder of the money, plus interest, would be paid off within six years.
Nateram never fully paid the sum, however, and while a payment was made on the land in 1981 by Kowsal on Nateram’s behalf, in 1989, Nateram would gift the land to Deonarine (Natram), committing to pass possession and transport of the land to him.
However, it was stated that Deonarine approached the Chans himself, and agreed to buy the land from them.
The first disagreement over possession of the land would arise in 1989, when Deonarine would file a claim against Kowsal and another brother seeking damages, an injunction preventing them from working the land, and an order that they give up possession.
However, in the following year, he would discontinue the claim.
It was stated that in 1990, the land was passed to Kowsal through his father’s will, which stated that the balance of the purchase price would be paid by him, and the title was to be passed on.
But in 2002, Deonarine received the transport to the land, which he had bought from the Chans, and in opposition to his brother’s occupancy, “came on to the land, burnt six bags of seed paddy and warned Kowsal not to enter the lands anymore.”
It was stated that it was this action which led Kowsal to commence proceedings in the High Court.
The court said that it found that neither Deonarine’s counterclaim to the land, filed in 2003, nor the passing of the transport to him were enough to override the rights Kowsal had acquired from being in occupancy of the land for all that time.