IN 1976, an Essequibo Magistrate ignored a point of law relating to a bona fide dispute as to title of land. He found defendant Sase Budhoo guilty of trespassing on disputed land and damaging a fence, and wrongly granted Judgment to Plaintiff Budhai Singh.
Appellant/defendant Sase Budhoo appealed to 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.
Appeal was allowed. Decision of the magistrate was set aside with costs to the appellant (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 Respondent conducted his own defence.
The facts of the case disclosed that the Plaintiff Budhai Singh, and Defendant Sase Budhoo were adjoining land owners in possession. In the Magistrate’s Court, plaintiff sued defendant for trespass to land which plaintiff 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 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 it 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 cognisance 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 non-existence 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.
Appeal allowed. Decision of magistrate set aside with costs.
In its judgment, the Full Court had referred to 19 cases.
Justice of Appeal 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, is 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 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, 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 , 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) 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.
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.
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, 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) land from the appellant (defendant’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.
By George Barclay