Budhu v Budhu et Al; Chung and Campbell v A.I.C. Battery and Automotive Services Company Ltd ((in Receivership))
| Jurisdiction | Guyana |
| Judge | Cummings, J.A. |
| Judgment Date | 31 May 2011 |
| Neutral Citation | GY 2011 CA 6 |
| Docket Number | Civil Appeal No. 85 of 2005 |
| Court | Court of Appeal (Guyana) |
| Date | 31 May 2011 |
Court of Appeal
Roy, P.; Cummings, J.A.; Persaud, J.A.
Civil Appeal No. 85 of 2005
Mr. M. Bacchus for the appellant.
Mr. A. Anamayah for the respondents.
Real Property - Appeal of findings of trial judge — Ownership of property passed to Respondent — Question of fact for consideration — Whether consideration was given to the effect of length of possession — Status of occupancy considered — No animus possidendi — Finding on evidence that there were no prescription rights — Appeal dismissed — Costs — Section 9(2) of the Title to Land (Prescription and Limitation) Act.
Statutory Interpretation - Order referred to in Section 6 (2) a (i) of the CA Act — Contextual approach — To be read with Section 6(4) of the CA Act — Appeal from final order made in summary proceedings jurisdiction of the Full Court — Leave required.
The appellant, Hemandai Budhu, sought a declaration in the High Court that she is the owner of property at Lot 51 Belvedere Corentyne (hereinafter the property). She based her claim on acquisition by prescriptive title. That property is owned by Sanchari Budhu under Transport No. 611/91. The appellant and the respondents share a familial relationship. Hemandai Budhu is the wife of Harrinarine Budhu (now deceased), and the latter was the brother of Sanchari Budhu, Janack Monedat and Jailall Monendat, the respondents.
A brief historical overview shows that the property was initially owned by the Guyana Sugar Corporation (Guysuco) formerly Bookers Sugar Estate Ltd. It was held under an agreement of tenancy by one Seelochanie who purportedly sold it to Harrinarine Budhu in March 1973. The description of the property in that agreement of sale is given as “one wooden building…together with the vendor's right, title and interest in and to the said Lot 23, Section C, held under tenancy from Bookers Sugar Estate Ltd.” Possession of the property was given to Harrinarine according to that agreement.
Harrinarine in turn purportedly sold the property in 1974 to his sister Sancharie and effected the necessary transfer before his death. Sancharie alleges that Hemandai and her family lived next to the property and their occupation of it after Harrinarine's death was with her permission. She claims too that prior to their occupation, the property was rented and occupied by several persons.
Hemandai Budhu, on the other hand disputes the sale of the property. She claims that her late husband bought the property in March 1973, and effected some repairs. Thereafter they moved into the property in May 1973 and have been living there ever since. Prior to that, she said they lived with her husband's mother on the adjoining property. Hemandai claims that she and her husband paid rates and taxes from 1973 until his death in 1991, and thereafter she paid.
The trial judge found that there was a sale of the property to Sanchari. She held that as a result of an express arrangement between Sanchari and her brother Harrinarine, Transport No. 611/99 was passed by the Guyana Sugar Corporation to Sanchari. She found too that Hemandai and her family's occupation of the property after 1974 was with Sanchari's consent and with the understanding that she was the owner.
Dissatisfied with the decision of the learned trial judge, Hemandai filed an appeal complaining inter alia, that:
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(a) The learned trial judge applied the wrong or no principles of law in arriving at her decision. She made a wrong finding on the facts when she held that Hemandai and her husband occupied the property since 1974 with Sanchari's permission when the evidence did not lend itself to such a finding.
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(b) The learned trial judge failed to consider the effect of Hemandai's long possession upon the title to the land.
Given the contentions of counsel for the appellant, it may be useful to set out in some detail, the findings of the learned trial judge. In coming to her conclusion, the trial judge posited:
“Having examined the evidence, I found that a there was a sale by Haririnarine and transfer of interest to Sanchari had taken place and that Harrinarine intended to give effect to this transaction when he paid the rates and taxes in her name. I also found that it was as a result of the express arrangement between them that transport 611/99 had been passed by Guyana Sugar Corporation to Sanchari Budhu. In coming to these conclusions, I considered the evidence of appraisal alongside, in particular, the Agreement of Sale and Purchase dated 18th July 1974 (Exh H) between Sanchari Budhu and Harrinarine Budhu. I also considered the evidence of Bissoondai Budhu as to what took place between Harrinarine and Sanchari at Guysuco office in 1975. No evidence was presented to contradict this evidence regarding the parties' visit to Guysuco and the subsequent actions regarding the transfer of interest. It is worthy of note that the plaintiff sought leave at the start of the trial to withdraw against Guyana Sugar Corporation, the fourth named defendant.”
Later on she added:
“Rather, I found that Harrinarine, the plaintiff, and their family had continued in occupation of the front property after July 18, 1974 with Sanchari's consent, and with the understanding that she was the owner.”
Does the evidence lend itself to the finding made by the trial judge? Mr. Bacchus, counsel for the appellant, put forward the robust argument that it does not. Mr. Anamayah, counsel for the respondents, submitted on the other hand, that it does. His submission is that Hemandai must be regarded as having gone into occupation of the property by consent under a family arrangement, which arrangement continued after her husband's death. He concluded therefore, that at the highest, Hemandai was a licencee and incapable of deriving a title by prescription.
As a court of review, we are of the view that the circumstances under which Hemandai was in occupation of the property, were questions of fact for the trial judge. Whether that occupation was based on a family arrangement, whether it was in their own right, were issues of fact for her consideration. The trial judge found that the relevant circumstances as well as the conduct of the parties showed their occupation to be consensual.
The finding of possession based on a family arrangement excludes acquisition by prescriptive title. See Ramnarace v. Lutchman (2001) 59 W.I.R. 511, Romany v. Romany 21 W.I.R. 491 and Edwards v. Braithwaite (1978) 32 W.I.R. 85. In Romany v. Romany, Georges, J.A. (p. 494) made the observation, with which we are in total agreement, that:
“Recent authority makes it clear that in family situations … where one member helps another in a period of difficulty over accommodation there is usually no intention to create legal relationships, so that there can be no tenancy at will but merely a licence.
Similar sentiments were expressed by Archer, J. in Isaac v. Hotel de Paris Ltd. [1960] 1 All E.R. 239 which were expressly approved by the Judicial Committee of the Privy Council, thus:
“It is clear from the authorities that the intention of the parties is the paramount consideration and while the fact of exclusive possession together with the payment of rent is of the first importance, the circumstances in which exclusive possession has been given and the character in which money paid as rent has been received are also matters to be considered.”
Lord Denning in the same case opined:
“The circumstances and conduct of the parties show that all that was intended was that the defendant should have a personal privilege of running a night bar on the premises with no interest in the land at all”
The circumstances and conduct of the parties in the case at bar show that Hemandai and her husband's occupation was based on a family arrangement, with no intention to create legal relations or legal interests in the property. We therefore see no reason to differ from the trial judge's findings having regard to the evidence and settled principles of law.
Mr. Bacchus also advanced the argument that at the time of the purported purchase of the property by Harrinarine from Seelochanie in 1973, Harrinarine acquired no interest in the land. Therefore at the purported sale to Sanchari, he could not have transferred any interest to her. At the highest, he argued, Harrinarine was a trespasser in relation to the land and had no interest which he could have transferred to anyone. He argued therefore, that the trial judge's finding of a transfer of interest was erroneous.
We find some merit in the argument advanced by Mr. Bacchus that. Harrinarine had no interest which he could have transferred. The recent decisions of the Caribbean Court of Justice in Ramdass v. Jairam (2008) 72 W.I.R. 270 and Ramdeo v. Heralall [2009] CCJ 3 (AJ) have confirmed that there is no equitable interest in land in Guyana. Prior to these decisions there were two schools of thought whether there can be equitable interests in land or whether equitable interests in land can be recognized.
It is common ground that the Guyana Sugar Corporation was the owner of the property. In the light of these recent authorities therefore, Seelochanie's purported sale to Harinarine and his purported sale in turn to Sancharie could not have been effected. No title or interest could have passed as neither of them owned the land. There is no gainsaying that the wooden building on the land could have been sold, but not the land itself. What took place, (as is evident by the agreement of sale of 1973), was a transfer by Seelochanie, a tenant of the Bookers/Guyana Sugar Corporation, of her tenancy to Harrinarine. He then...
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