Dular v Stanton et Al

• Jurisdiction: Guyana
• Judge: Vieira, J. A.
• Judgment Date: 26 September 1979
• Neutral Citation: GY 1979 HC 12
• Docket Number: No. 1431 of 1974
• Court: High Court (Guyana)
• Date: 26 September 1979

High Court

Vieira, J.

No. 1431 of 1974

Dular

and

Stanton et al

Appearances:

J.A. King, S.C., for plaintiff.

R.B. Fields for defendant.

M.R.S. Stoby for added defendant.

SOLICITORS:

S.M.A. Nasir for the plaintiff

H.B. Fraser for both defendant and added defendants.

Tort - Trespass to land — Claim by plaintiff that the defendant committed several acts of trespass on a portion of land — Defendant denied any act or acts of trespass — Plaintiff also claimed prescriptive rights over the said lands — Title to both lots not demarcated on plan — No trespass by the defendants — Land owned by church — Action dismissed.

Vieira, J. A.

1 By Transport No. 1132 of 1963 dated 5thl October 1963 (Exhibit “A”) the plaintiff became the owner of the following property –

Lot number 18 (eighteen) and east half of lot number 19 (nineteen) in Section A. Phoenix, in the Phoenix Country District, situate in the Island o Leguan in the Country of Essequibo, and colony of British Guiana, as laid down and defined on a play by Robert Pinkerton, Sworn Land Surveyor, dated 19th November, 1853, and “deposited in the office o f the Registrar at Georgetown, on 11th January, 1854 no buildings thereon”.

2 In her statement of claim, the plaintiff pleaded that between 6th August, 1967 and 24th November, 1973 the defendant, together with his servants and/or agents, committed several acts of trespass on a portion of land part of the east half of lot 19 aforesaid, which included cutting the plaintiff's wire fence, wrongfully pulling out posts, erecting a bridge leading from the public road to the said portion of land, wrongfully erecting a trespass notice board on the said portion of land, wrongfully erecting a trespass notice board on the said portion of land, damaging the plaintiff's growing crops, unlawfully planting his own crops on the said portion of land, wrongfully digging a drain which caused the water to escape from the plaintiff's rice beds, threatening and harassing the plaintiff, her brother and son and, worse of all, burring his deceased son and wife on the said portion of land despite several protests from both mother and son.

3 In his defence, the defendant pleaded a total denial of any act or acts of trespass as alleged by the plaintiff but admitted that he did bury his son and wife on the said portion but asserted that he was and is entitled to enter upon the said portion of land by virtue of an authority granted to him by the added defendants whom in their defence, averred that they and their predecessors in title, the London Missionary Society, were the owners of the said portion of land by virtue of Transport No. 264 of 1844 dated 8th July, 1844, and that at all material times since that they have been in possession and occupation of the land in dispute and they have exercise all rights of ownership and control over same and that they have never suffered the plaintiff to occupy any portion of the said land save though the permission of its representatives. Further, and in the alternative, they pleaded that if the plaintiff has occupied any portion of the said land held by them (which is not admitted), then the plaintiff has not complied with, and cannot assume the benefit of, the Title to Land (Prescription and Limitation) Act, Cap. 60:02 and they specifically denied that their title to the said land or any portion thereof had been extinguished neither had the plaintiff acquired prescriptive rights to any portion of the said land.

4 The defence of the added defendants (hereinafter referred to as the Church) was filed after the amended reply of the plaintiff which the acts of trespass were and are being committed (which is not admitted) then the plaintiff herself and the persons through whom she claims have acquired ‘prescriptive rights’ over the said land and any title which the church might have had over the said land (which title which the Church might have had over the said land (which title is not admitted) has been extinguished.

5 Despite the voluminous nature of the evidence adduced, both oral and documentary, spreading over a period of two years and contained in six Minute Books, there is, to my mind, one important issue in this matter that has first and foremost to be decided and that is, who is the true legal owner or person entitled to the possession of the portion of land in dispute?; or, put another way, does the portion of the land in dispute form part and parcel of the east half of lot 19 as alleged by the plaintiff or does it in fact form part and parcel of the land in dispute from part and parcel of the land transported to the Church's predecessors in title since 1840 and wholly excepted from any part or portion of the east half of lot 19 aforesaid as alleged by the Church? Only when this is first decided, can we then move on to the other issue involved?

6 In my considered opinion, the answer to either or both of these questions on the first issue must emphatically be answered in favour of the Church and I say so for the following reasons –

• (1) The plaintiff purchased lot 18 and the east half of lot 19, Section A, Phoenix, Leguan, from one Nanhay, a businessman of Goed Fortuin, West Bank, Demerara for the sum of $2,600.00 and obtained Transport No. 1132 of 1963 therefor (Exhibit “A”).

• (2) Nanhay held the same two lots under Transport No. 860 of 1956 (Exhibit “B”) which he had purchased from his father-in-law, one Rupram, for $1,000.00.

• (3) Rupram had bought lots 18, 19 & 20 Section A, Phoenix at execution sale for $45.34 on 23rd June, 1942 and had obtained Judicial Sale Transport No. 1057 of 1942 in respect thereto (Exhibit “C”). It is important to note right away that Exhibit “C” makes absolutely no mention of the ‘east half of lot 19’ as does both Exhibits “A &B” but merely states ‘lot 19’ simpliciter.

• (4) The Church bases its title upon Transport No. 264 of 1844 dated 8th July, 1844 (Exhibit “H”) the full description of which is as follows –

  “Be it known that on the Eight of July, 1844, appeared ADAM PERSON of the Country of Essequibo which appearer declared by these presents to Cade, Transport, and in full and free property to make overto and in behalf of JOSEPH KETLEY, WILLIAM PARRIS CARTER, JOHN BUTGARD BRANDT and GEORGE McFARLANE and their successors as Trustees for and on behalf of the Church of Congregational Dissenters who from time to time may worship in the Building to be erected on the hereinafter-mentioned piece of land, upon and for the trusts and provides expressed and contained in a certain trust deed or Declaration of Trust of Province New Chapel and out Native in the Province of British Guiana dated the Eight day of August, 1840, and duly recorded in the Registrar's office of the Countries of Demerara and Essequibo.

  One acre and one hundred roods of land more or less part of plantation Phoenix situate in the island of Leguan, Country of Essequibo, between plantation Henrietta on the South-west and plantation De Witte Zwan on the north-east, extending thirty-five roods in depth from the public road known and described on a plan of part thereof by the Sworn Land Surveyor, Henry Ruinsford, deposited in the Registrar's office aforesaid transported on the Twenty-Eighth October, 1840”

  (underscoring mine).

• (5) The plaintiff's transport (Exhibit “A”) is based upon a plan by Robert Pinkerton, Esq., Sworn Land Surveyor, dated 19th November 1853 and deposited in the Registry on 11th January, 1854 (Exhibit “R’).This plan shows 20 lots of Section A, Phoenix, and was made at the request of one Mr. Trim Cozier, described in the Title of Legend as the owner of lot 5. In the said Legend, lot 19 is shown as being approximately 2 ¹/₂ times the size of the width of the other 19 lots and what is significant here, to my mind, is not only the difference in size but also the fact that the land in dispute is shown as a distinct delineated area in the shape of an “elongated square” whose length is about 2 ¹/₂ times its width, which the “expert” witness in this case, Cradock Stewart Spence Esq., Sworn Land Surveyor, has described as being “over to one side”. On the plan lot 19 (without the delineated elongated square) (which I shall hereinafter also called the squared area) is L – shaped with its facade facing the public road being only about ¹/₂ the width of the faÇade facing of each of the other 19 lot, all of which are identical in area, i.e., 1 acre + 39 rods = 300 + 39 = 339 roods. If we take the area of the L – shape portion of land and add it to the square area, then, according to Mr. Spence, the total of the two being about 2 ¹/₂ = 847.5 roods. This was a calculation made by Mr. Spence not according to the ‘scale’ on Pinkerton's plan (Exhibit “R”) (which he was unable to do because of the depth of the darkness of that part of the plan) but according to a ‘comparative scaling’ made by him of the said lot 19 as compared with the other lots as shown on that plan. I accept this calculation as being reasonably accurate. A further significant aspect, I think, to which Mr. Fields made reference in his address, is that whereas all the other lots are numbered in one straight line across the middle of Section A, the number of lot 19 is out of line in that it is significantly higher than the numbers of the other lots. Further, the number ‘19’ is marked on the L – shaped piece of land and no where appears within the boundaries of the squared area.

• (6) The church's transport is based upon a plan by Henry Rainsford, Esq., Sworn Land Surveyor, dated 5th September, 1840 (Exhibit “P”) which was prepared at the request of the same Adam Pearson mentioned in the church's transport (Exhibit “H”). The purpose of the survey was to divide Plantation Phoenix into 32 house lots which were to be sold by Adam Pearson to prospective purchasers as and when agreements of sale and purchase were executed between the parties. The plan is clearly an “incomplete”...