THE Caribbean Court of Justice (CCJ) on Thursday brought to an end a family dispute involving lands in Essequibo, Guyana.

In 2002, Kowsal Narine filed a claim against his brother, Deonarine Natram, claiming that their father, Mr. Nateram, had been in possession of the lands since 1959, and had therefore acquired prescriptive title to the lands.

Narine also claimed that he had acquired prescriptive title to the lands.  The CCJ allowed the appeal, and declared that Narine had been in sole and undisturbed possession of the land since June 1, 1991, and that any title, right or interest of his brother had been extinguished.

According to the facts, in 1959, Mr. Nateram entered into an agreement to purchase the lands from Ashbourne Chan and Foster Chan, who were also named as defendants.

The lands totalled 5.21 acres, and are situated at Cultivation Block, number 62 in Section C, Golden Fleece, Essequibo at $360.00 per acre.

Mr Nateram had paid a deposit of $100.00, and was put into possession of the land by the Chans on April 4, 1959. The balance of the purchase price was to be paid off in six years, with interest running at the rate of 10% per annum.

Between August 1959 and August 1965, the deceased made five payments towards the purchase price totalling $1,630.00.

Thereafter, no further payments were made, except for the sum of $950.00 made in 1981 by his son Kowsal Narine on his behalf.

However, in 1989, Mr Nateram signed an agreement by which he gifted the land to Mr. Deonarine Natram, another son. Natram subsequently approached the Chans, and they agreed to sell the land to him for $9950 on the same day, but transport was not passed to him by the Chans until 2002.

RESTRAINING ORDER

Thereafter, Deonarine instituted court proceedings against Kowsal and another brother, Narine Nateram (also called Narine Natram) in which he sought damages, an injunction restraining them from working the land and an order that they yield up possession of the land.

Deonarine discontinued the claim in March 1990. Meanwhile, in May 1990, Mr Nateram made a will giving the lands to Narine. He died on May 31, 1991.

In his will, the deceased stated that the balance of the purchase price shall be paid by him, and have transport passed to him. On June 21, 2002, Deonarine obtained Transport Number 521/2002 from the Chans, and on August 20, 2002, he entered the land, burnt six bags of seed paddy, and warned Kowsal not to enter the lands anymore.

As a result of Deonarine’s actions, Kowsal began legal proceedings in the High Court. However, Deonarine appealed the decision of the trial judge.

The principal issue on appeal was whether a purchaser of land who was put into possession by his vendor entered in adverse possession. The Court of Appeal found that the deceased was not a tenant at will, but rather a purchaser under a contract of sale who was given exclusive possession pending completion of the contract. In those circumstances, and given recent decisions, such a purchaser was regarded a licensee.

The court said that though the deceased’s agreement with the Chans was for the purpose of sale, the pleadings supported the contention that he was “put into possession” by the Chans, so it was not unreasonable to conclude that he did so with their permission, and therefore could not acquire prescriptive title.
The court also disagreed with the trial judge’s finding that Kowsal had acquired prescriptive title, in his own right, as the evidence was not of the quality that should have satisfied the trial judge that he had the requisite intention to possess.

COSTS AWARDED

The court concluded that, in any event, Kowsal could not succeed in his claim due to non-compliance with the Rules. The appeal was allowed, and costs awarded to Deonarine agreed in the sum of $100,000.00.

Three issues were considered by the Court in the appeal: Whether time could run for the purpose of prescriptive rights in favour of a purchaser who enters into possession with the agreement of the vendor, but who has not paid the full purchase price; whether Kowsal possessed the land in his own right and acquired prescriptive title following the death of the deceased; and whether a litigant can obtain a declaration of title without approaching the Land Court and complying with the Rules of the High Court.

The CCJ agreed with the Court of Appeal that the deceased was not a tenant at will. It also disagreed with the submission that paying the deposit entitled the deceased to enter into possession in his own right. Instead, the deceased’s entry on to the land was on the basis of a gratuitous licence created independent of his agreement to purchase from the Chans.

Thus, time could not run in his favour for the purpose of prescriptive rights until the license was terminated by the Chans, or the purchase price was paid in full.

Meanwhile, the Court also analysed the jurisprudence in Guyana as to the status of a purchaser put into possession of land by the landowner/vendor, pending the full payment of the purchase price.

In the Court’s view, where a purchaser paid the full purchase price and entered into possession pursuant to an agreement for sale, he entered into possession as of right, and time began to run in his favour on his entry.

Where, however, he entered into possession under an agreement for sale, but had not paid the full purchase price, the question of whether that purchaser’s possession was as of right was a matter of construction of the agreement for sale, having regard to the circumstances of each case.

WITHIN HIS RIGHTS
As to whether Kowsal acquired prescriptive title in his own right, the Court accepted his evidence and found that he had satisfied the requirements of Section 3 of the Act.

He had been in sole and undisturbed possession of the land since June 1, 1991 when the gratuitous licence granted by the Chans terminated upon the death of his father.

The Court’s finding on this issue was further supported by Deonarine’s evidence that he was never in possession of the land, as well as his failure to commence proceedings for the recovery of land within twelve years after Kowsal entered into possession.

The Court noted that when Kowsal commenced this matter on August 27, 2002, he had not yet been in possession for twelve years. But when he filed his Statement of Claim on October 29, 2003, he had acquired the statutory 12-year period, and the title of any paper owner had been extinguished.

The Court also found that neither Deonarine’s counterclaim, filed on November 13, 2003, nor the passing of transport from the Chans to Deonarine could stop time running in favour of Kowsal, or from overriding the rights that he had acquired.

Additionally, the Court did not agree that Kowsal’s non-compliance with the Rules was fatal to his claim. Instead, the Court held that Kowsal could file a petition for a declaration of title pursuant to Section 4(1) of the Act, and Rule 3 of the Rules.

As such, the appeal was allowed, and the CCJ ordered and declared that Kowsal had been in sole and undisturbed possession of the land since June 1, 1991, and that any title, right or interest of Deonarine had been extinguished pursuant to the Act.
Kowsal was represented by attorneys Messrs C.V Satram, R. Satram, Mahendra Satram and Visal Satram, while his brother and the Chans (the respondents) were represented by Messrs Anil Nandlall and Manoj Narayan.

The case was heard before Justices Adrian Saunders, David Hayton, Winston Anderson, Maureen Rajnauth-Lee and Denys Barrow. The judgment was delivered by Justice Rajnauth-Lee.