-But wins in Full Court
IN 1976, an Essequibo Magistrate ignored a point of law relating to a bona fide dispute as to title of land. He found the defendant, Sase Budhoo, guilty of trespassing on disputed land and damaging a fence, and wrongly granted judgment to the plaintiff, Budhai Singh.
Budhoo appealed the matter in the Full Court, which ruled that the magistrate ought to have ruled that the defendant had successfully raised a bona fide dispute as to title to immovable property.
The appeal was allowed, and the decision of the magistrate set aside with costs to the appellant cum defendant, Sase Budhoo.
The Full Court was constituted by Chief Justice Harold Bollers and Justice of Appeal Aubrey Bishop, who later became Chancellor of the Judiciary.
Attorney-at-law, Mr. K D Doobay appeared for the appellant, while the respondent/plaintiff (Budhai Singh)  conducted his own defence.
The facts of the case disclosed that Singh and Budhoo were adjoining  landowners in possession.  In the Magistrate’s Court, Singh sued Budhoo for trespass to land which the former   allegedly bought  from one  Verwayne, but title to which had not yet been perfected in him.
The allegation was that the defendant trespassed by digging a drain on the land, causing the  plaintiff’s  fence  to fall and become damaged.  In the course of the hearing,  the dispute between the parties centered  on the existence  or non-existence  of an inter-lot drain  between their respective  properties  at Lots  35 Section B, and 36 Danielstown, Essequibo. 
Plaintiff said there was no drain between the properties when he bought from Verwayne  and went into possession.
Defendant and Verwayne, on the other hand, spoke positively about the drain on the defendant’s side of the fence in question, and the existence of two paals in line with which  the fence  in dispute  was positioned.  These paals were later found to be missing.
At the conclusion of the hearing, it was submitted  by counsel for the defendant  that the court’s jurisdiction  was ousted  by reason of the existence  of a  bona  fide  dispute  as to title to land.   Nevertheless, the learned magistrate gave judgment for the plaintiff on his claim.   Section 3 (3)  of the Summary Jurisdiction (Petty Debt ) Act, Chapter  7: 01 provides, inter alia, as follows:
“The Court shall not have cognizance of any action in which any incorporeal right, or the title to any immovable property, is or may be in question. …”
On appeal to the Full Court of the High Court, that Court held:
(i)      That there was a genuine dispute  about (a)  the existence  or nonexistence  of the drain  on the defendant’s side  of  the fence;  (b) the true position of the paals delineating  the boundary  between Lots  35 B and 36; and (C)  the actual position of the fence;
(ii)       That it should have been apparent to the magistrate that though there was no reliable evidence  before him as to the boundary  line  and the existence of the drain, there were, nevertheless,  competing claims as to ownership of the strip of land undefined though it was, in the vicinity  of the existing fence;
(iii)         That some evidence ought to be taken by a magistrate to ascertain whether he is possessed of jurisdiction  to entertain the claim within Section  3 (3) of Chapter 7:01.  He must ascertain whether an incorporeal right  or title  to any immovable property is in question or may be in question, and if he has a doubt  whether such right  may be in question, he should decline jurisdiction;
(iv)        That the appeal will be allowed because, on the evidence, the magistrate ought to have ruled that the defendant/appellant had successfully raised a bona fide dispute as to title to immovable property.
In arriving at its decision, the Full Court had referred to 19 cases.
Justice Bishop, who delivered the judgment of the Court, noted that the main ground argued by counsel for the appellant (defendant) was that:
“…the Magistrate’s Court had no jurisdiction in this matter, objection to which was formally taken before decision that the jurisdiction of the Court was ousted by operation of Section 3 (3)  of the Summary jurisdiction (Petty Debt) Act Chapter 7:01, as there was a bona fide dispute  as to the land and the fixtures thereon, the subject matter of this action.”
Continuing, Justice Bishop said that it should be noted that the appellant (defendant) did not in his defence “plead” this objection to the magistrate’s jurisdiction being ousted but,  through his counsel, did so at the close of the case. The learned magistrate, he said, unaware, therefore, that such  an objection would be raised, proceeded to hear evidence  and in due course gave judgment for respondent (plaintiff) on his claim.
“In para. 5 of his plaint,” Bishop said, “the respondent (plaintiff)  averred that between  January 26 and February 2, 1975, inclusive of both dates, the appellant (defendant)  unlawfully and maliciously  trespassed  upon his land, dug a drain thereon, and as a result caused 233 feet of the respondent (plaintiff)’s  said fence to fall down and become damaged.   He specifically claimed as damages $350 for the fence, and $150 for the land, but the learned magistrate did not indicate any apportionment under the two sub-heads.”
Bishop said that during the trial, “it emerged, however, that the respondent (plaintiff) had bought Lot 35, Section B, Danielstown, Essequibo from one Francis Verwayne on February 2, 1973, with the building thereon and the surrounding fence.  In support of the said sale, the respondent  (plaintiff) tendered the agreement, Ex. ‘A’.   He also testified that he had been living on the land prior to the sale, and had paid Verwayne no rent since purchase.  The respondent (plaintiff)  complained that though these were the facts, Verwayne had refused to formally convey the property to him.”
Continuing, Bishop said that when Verwayne gave evidence on May  20, 1975, “he said that Lot 35 B  and the surrounding fence  were his property,  and denied , inter alia,  signing the agreement, or receiving the purchase price  of $3,000 acknowledged therein. 
“In short, he denied  selling lot 35 B Danielstown  to the plaintiff,  but conceded that the respondent (plaintiff)  had  discontinued paying him rent in 1973, and held up his son for picking coconuts on the land.”
“Above all,” he said, “Verwayne admitted  that he had taken no action against the respondent (plaintiff) to recover any rent.  The learned magistrate assessed Verwayne to be an inveterate liar, and found that he had sold the property to the respondent (plaintiff).
“Nonetheless, it appeared to be common ground that Verwayne had erected a fence separating the respondent (plaintiff’s)’s land from the appellant (defendant’s)’s  Verwayne said.”
After recounting this and other instances, including the bona fide dispute, the appeal was allowed and the order of magistrate set aside with costs to the appellant.