Appellate Court set aside ruling and ordered new trial

IN 1998, Commissioner of Title Gerald Brooms dismissed a petition by Lashley Clifford Gomes and Joycelyn Carol Gomes for a declaration of title to land at First Avenue, Bartica, because he concluded that the vendor, Philip Innis, had no possessory interests to sell.
Dissatisfied with the ruling, the couple, (a husband and wife) appealed. The decision was upturned by the Guyana Court of Appeal.

However, Mr. and Ms. Gomes who had bought the possessory rights and interests of their vendor Philip Innis for $700,000 will have to face a new trial before they could lay claim to the property.

The Guyana Court of Appeal, comprising Chancellor of the Judiciary, Madam Desiree Bernard, and Justices of Appeal Mr. Nandram Kissoon and Mr. Ian Chang ruled that the Commissioner’s decision was perverse in the light of the evidence.
The Court of Appeal set aside the decision of the Commissioner of Title (or Land Court Judge) and ordered a new trial.

That court also ordered $25,000 costs for the appellants/petitioners.
At the hearing of the appeal, the appellants were represented by Attorney-at-law, Mr. Neil Boston.
The facts of the case disclosed that the petitioners Lashley Clifford Gomes and Joycelyn, both of Lot 13 Sixth Avenue, Bartica, Essequibo, filed a petition on March 17, 1993 in the High Court seeking a Declaration of Title for Lot 58, First Avenue, Bartica.
This lot contains 0.263 of an acre and is shown on a plan by Teeka Singh, Sworn Land Surveyor, dated October 26, 1992, on record in the Department of Lands and Surveys as plan No. 24208.

The petitioners, pursuant to an agreement of sale and purchase dated September 18, 1992, bought the possessory rights and interests of their vendor, Philip Innis for $700,000 and entered the property.

They paid a deposit of $60,000 to the vendor, and the balance was to be paid upon passing of transport.

The opposer to the petition was Mr. Michael Willock of 12 Whitwell House, Northwald Road, London, England, through his duly constituted attorney, Raymond Willison of Plaisance, East Coast Demerara.

Michael Willock was the son of Lydia Elizabeth Willock, nee Innis, who died intestate on May 14, 1991, in England. She was the owner of the paid property, Lot 58, First Avenue, Bartica, under Transport No. 195 of April 21, 1979, and according to Philip Innis, an existing old house on the land in 1972 was owned “by me and sister Lydia E. Innis”.
But in the High Court, the Land Court judge said the issue was whether or not Philip acquired possessory right of over 12 years from 1972 to 1992, to (1) extinguish the legal title of Arsina Da Silva and of Lydia E. Innis (Transport No. 195 of 1979) and (2) override all possessory rights, if any, of Lydia E. Innis and all others.

The Land Court judge had viewed as relevant facts the affidavit of Philip Innis who had said that he was 65 years old and had gone to live on property in 1972.
According to him there was a small house on the property which was owned by Arsina Da Silva.

Da Silva sold the small house to himself and Lydia Innis in 1972. Lydia Innis provided money to the purchase. She was living in England. He added, “I enlarged the building in 1972-1975; I built fence, septic tank, dug drains and planted crops, mangoes, five finger and coconut trees. All this planting began in 1973. From 1972 to present, I paid no rent to anyone for the land to Da Silva or anyone else.”

Among other things the Land Court judge said he had found from proper inference from the evidence that the root of Philip Innis factual occupation was conditioned upon a family arrangement where a place was provided for a mother, a brother and a sister-in-law. And after the death of the mother and the sister (the provider), Philip Innis unscrupulously formed the intention to possess the property and carried out acts of possession, as for example, the sale to Braithwaite and the Gomes’.

As a consequence, Commissioner of Title Brooms dismissed the petition on the ground that Philip Innis had no possessory interests to sell.

The judgement of the Appellate Court was delivered by the Chancellor.
Among other things, the judgment agreed with the arguments by counsel for the appellants, that the decision of the Commissioner of Title was erroneous in law.
It was noted that the Commissioner of Title finding that Philip Innis did not acquire a possessory title to Lot 58 First Avenue, Bartica, was perverse in the light of the evidence led by Philip Innis, Lashley Gomes and Joycelyn Gomes, Arthur Rhodus and Horace Shurland.

The appellants had also argued that the Commissioner of Title misdirected himself on the law relating to adverse possession and that he erred when he found that the most of Philip Innis factual occupation was conditioned upon a family arrangement where a place was provided for a mother, a brother and a sister-in-law.

It was said too that the Commissioner of Title finding that Philip Innis unscrupulously formed the intention to possess the property and carried out acts of possession after the death of the mother and sister-in-law (provider) was perverse) for the following reasons:
(a) there was no evidence on which the trial judge could have so found,
(b) the inference drawn by the Commissioner was erroneous and was not based on evidence before the Court.
The judgment of the Commissioner of Title (land Court judge) was set aside and a new trial was ordered.
The Appellants were given $25,000 costs.