2 families exchanging homes and ending in litigation

IN VIEW OF racial disturbances in Guyana in 1964, the appellant and the respondent orally agreed to exchange their houses.

But when things appeared to return to normalcy, the respondent London called upon the appellant Chung to return to his original house which he refused to and contended that the agreement was intended to be permanent.

However, following a prosecution by the respondent for the offence of trespass it was objected in defence that the magistrate had no jurisdiction because there was a bona fide dispute to title to immovable property within the meaning of s.10 of the Summary Jurisdiction (Offences) Ordinance ,Cap. 14. The magistrate overruled the objection and convicted the appellant.
The appellant appealed to the Full Court, constituted by Justices H. B. S. Bollers and P.A. Cummings.

The Full Court set aside the conviction and sentence by the magistrate, with costs to the appellant.
The Full Court Held: (i) There was no evidence that the appellant’s claim was not bona fide, the circumstance that the agreement was not in writing being far from conclusive having regard to the fact that the agreement was reached at a time of emergency and national distress.

(ii} when an objection is raised under s.10 of Cap, 14 the magistrate must first inquire into so much of the case as is necessary to enable him to rule on the objection, before inquiring into the merits of the case.
(iii) s.33 (e) of Cap. 14 requires clear proof of criminal intent on the part of the defendant in remaining on the premises after having been requested by the owner to depart therefrom.
Consequently, if the appellant honestly and genuinely felt, even if erroneously so, that he was under the agreement, entitled to remain in the house, no offence could have been committed by him.

Appeal allowed.
Zaman Ali for the appellant.
A.O. H. Holder for the respondent.
Judgment of the Court: This appeal arises out of a private prosecution by the respondent brought against the appellant in the magistrate’s court whereby the appellant was convicted of the offence of trespass to property, contrary to s. 33(e) of the Summary Jurisdiction (Offences) Ordinance ,Cap. 14. The particulars of the conviction order are as follows:
“That John Chung on the 5th July, 1965, at Ocean View Uitvlugt, West Coast, Demerara, within the West Demerara Judicial District, having lawfully entered upon the complainant’s house and land remained thereon after having been required by the complainant to depart therefrom.”

The case for the prosecution in the court below as disclosed by the evidence of the respondent (complainant) and his witness, a police constable, was, that during the month of May, 1964, there were racial disturbances, between the two major race groups on the West Coast Demerara, and it was agreed between the respondent, who lived at Uitvlugt, a predominantly Indian area and the appellant (defendant) who lived at Stewartville, a predominantly African area, that there should be a temporary exchange of houses between them until the disturbances had ceased and the situation had returned to normal. The house at Uitvlugt was on the land held by him under a lease from Bookers Sugar Estates, Ltd., whereas the appellant’s house at Stewartville was on land owned by him by virtue of a transport.

As a result of the agreement , the respondent and his family on, the 14th day of May, 1964, proceeded to occupy the appellant’s house at Stewartville, and the appellant and his family occupied the respondent’s house at UItvlugt, the respondent placing a notice outside the appellant’s residence which read, ”Property occupied by London” and a notice outside of his own residence, “Property occupied by Chung.”
Furniture was moved by both parties to the agreement to the respective houses, but the respondent left under his house in the yard a blackboard, an old table, a drum containing two gallons of paint oil and a box, all of which he claimed not to have abandoned.
In conclusion the Full Court judgment added:

“It must also be pointed out that under the agreement which the magistrate found to exist, the respondent could only have required the appellant to leave the premises if the situation had returned to normal after the racial disturbances.
There was no firm evidence at all on this aspect of the matter but the mere ipse dixit of the respondent under cross-examination that to his mind had ceased in January, 1965. It could not then be properly said that in the circumstances the appellant was “lawfully required” to depart from the “land to other place.”
For these reasons the appeal must be allowed and the conviction and sentence of the magistrate set aside with costs to the appellant fixed at $25 plus the cost of the record.
Appeal allowed.