Mangroo v Jamohan
| Jurisdiction | Guyana |
| Judge | Bernard J.A.,George, C. |
| Judgment Date | 07 June 1992 |
| Neutral Citation | GY 1992 CA 8 |
| Docket Number | Civil Appeal No. 80 of 1990 |
| Court | Court of Appeal (Guyana) |
| Date | 07 June 1992 |
Court of Appeal
George, C.; Kennard, J.A.; Barnard, J.A.
Civil Appeal No. 80 of 1990
Mr. C.M.L. John for the appellant.
Mr. Fitzpatrick with Mr. B. Ramkarran for the respondents.
Execution - Levy on immovable property — Marshall's return on instructions to levy — Presumption of regularity of return — Burden of proof.
On the 28th November, 1984 transport for a portion of land situate at Airy Hall, Mahaicony, East Coast, Demerara, was pass to the appellant by the first named respondent upon the appellant paying the sum of $3,000.00 as a deposit and executing a promissory note for the sum of $11,000.00 which represented the balance of the purchase price for the said portion of land.
The appellant having failed to pay any further sum of money, in February, 1985 the first-named respondent sued him on the promissory note. A sum of $2,000.00 was paid after the writ was served, and the appellant on 11th March, 1985 consented to judgment in the sum of $9,000.00. He was given six months to pay. A further sum of $1,000 was paid leaving a balance of $8,000.00. The appellant defaulted on payment of the balance of the judgment, and in October, 1985 the portion of land at Airy Hall, Magaicony, East Coast, Demerara, which he held under transport was taken in execution by a marshal of the Supreme Court to satisfy the amount outstanding on the judgment. A building that had been erected on the land after it had been bought was not included in the levy.
The land which was taken in execution was purchased by the first-named respondent and was purchased by the first-named respondent who lives nearby. The appellant launched proceedings against both respondents alleging fraud and misrepresentation pertaining to the levy, he sought orders that the levy be cancelled and that the transports which were passed to the respondents be revoked. In this regard he pleaded that the first-named respondent had promised and represented to him that he would not levy on the property, but would await payment of the balance of the purchase price until December, 1985, thereby lulling him into a sense of false security. He also alleged collusion and fraud between the respondents to deprive him of his property but none of these allegations was supported by any particulars and no evidence emerged at the trial to substantiate them. During the trial he requested and was granted an amendment of his statement of claim to include a claim for damages for trespass.
The respondents denied the appellant's averments, and the first-named respondent specifically denied granting him extensions of time to pay the judgment or making any representations which induced him to withhold payment.
The appellant's evidence at the trial in large measure accorded with his pleadings, but additionally he was permitted to give evidence of his ownership of two vehicles – a truck and a tractor – as well as furniture and a small machine which he said were in his house at the time of the levy.
The first-named respondent had testified that he received information from the Licence Revenue Department that the vehicles were not registered in the appellant's name, but this evidence was clearly hearsay and therefore inadmissible, the certificates of registration not having been produced.
The appellant's main grounds of appeal are that of the learned trial judge erred in law and misdirected himself in holding that he was not entitled to damages for trespass, and in refusing to restrain the respondents from benefiting from the crops growing on the land.
Counsel on his behalf alluded to evidence that the appellant at the time of the levy was the owner of movable property, to wit, a tractor, truck, furniture and a machine, and that applying the ratio decidendi in the case of Singh v. McCloggan (1961) 1 W.I.R., 166the marshal ought to have levied on these first before levying on immovable property. He had initially contended that the building on the land was movable property, but later conceded that as the appellant was the owner of an undivided portion of land, the building acquired in law the nature and quality of land, and became immovable property.
Support for this conclusion can be traced backed to the dicta of Dalton, J. in the case of Lillia v. Beharry Lall (1916) L.R.B.G., 169, where at page 170 the learned judge expressed this view:
“Where movables are affixed to land, or where buildings are erected thereon, the intention that they shall permanently remain there is an element which goes to make up their quality of immovability”.
In the recent case of Sumair Singh v. The Chase Manhattan Bank, N.A. et al (C.A. No. 36/1986), George, C. undertook a detailed analysis of this aspect of land law as it has evolved over the years and came to the following conclusion:
“It is the co-incidence of legal ownership of both building and land in the same person, coupled with the purpose and nature of the building and the necessary intent, and not the extent of the ownership in the land that should be the determining factors”.
In the present case the appellant was the owner of the land by transport, and his uncontroverted evidence disclosed that the build a house on it in which he resided since 1964. There is therefore no difficulty in arriving at the conclusion that the house acquired the nature and quality of the land and became immovable property. consequently it could not have been levied upon as movable property.
As regards the actual instructions given to the marshal it is apposite at this stage to note that he was expressly directed to levy first on the movable property of the appellant, and it was only if sufficient movable property. Unfortunately in this case the marshal who carried out the levy was not called to testify as to what he actually did. All that was available to the learned trial judge was the return that he had endorsed on the instructions and which was to this effect:
“This 9th day of October, 1985. In pursuance of this writ of execution I have made diligent search, and cannot with reasonable diligence find any movable property of the defendant whereon the levy neither was any pointed out to me by the plaintiff. I therefore proceed to levy on the immovable property of the defendant which was pointed out to me by the plaintiff and which said property will in due course be advertised for sale”.
The first-named respondent was not at home when the levy was executed, but his sister Ann Mangroo, testified that the marshal did not make any enquiry concerning the tractor and truck which were under the house. She also did not say whether the marshal carried out any search of the house.
Up to this point I have assumed that there was sufficient evidence that the appellant was the owner of movable property that could have been levied upon. On this aspect of the case the learned trial judge had said at one stage in his judgment that he “accepted that the (appellant) had no sufficient valuable movable property” upon which to levy first before levying on the lad as is required by Order 36, r. 42 of the Rules of the High Court. This statement is a misrepresentation of the true position for implicit in the use of words “no sufficient valuable movable property” is the suggestion that there was some movable property that was available for execution, and in this regard he may well have believed that the appellant was the owner of the furniture and the machine. If such property was available then its insufficiency can be no justification for failing to levy upon it as r. 42 empowers the levy on immovable property only to the extent of any inadequacy of movable property to satisfy the judgment.
Later in his judgment the learned trial judge stated that he was “quiet satisfied that the tractor and truck parked under the house were not the appellant's property”, and supported...
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