Rahaman et Al v Attorney General and Deeds Registry Authority Corporation
| Jurisdiction | Guyana |
| Judge | Singh, C. |
| Judgment Date | 28 January 2009 |
| Neutral Citation | GY 2009 CA 2 |
| Docket Number | Civil Appeal No. 96 of 2005 |
| Court | Court of Appeal (Guyana) |
| Date | 28 January 2009 |
Court of Appeal
Singh, C. (Ag.); Ramson, J.A.; Roy, J.A.
Civil Appeal No. 96 of 2005
Mr. Rex Mc Kay, SC with Mr. Fitz Peters for the appellants/plaintiffs.
Mr. Doodnauth Singh, SC with Ms. Sueanna David for the respondents/defendants.
Civil practice and procedure - Pleadings — Whether trial judge could base his findings in favour of the defendants on an issue not pleaded in the Defence.
Singh, C. (AG.): The Tagore Memorial Secondary School was established in 1942 at No. 74 Village, Corentyne, Berbice. In 1947 Mr. Hamid Rahaman, deceased, donated the land on which the school and its playground presently stand and thereafter these lands became exempt from taxation. These lands are shown on a plan by R. John, Government Land Surveyor, which is dated 24th July, 1997 and are marked as Block S and Block T respectively. These blocks formed the subject matter of the litigation between the parties. At the commencement of the hearing of this appeal, Mr. Mc Kay, senior counsel for the appellants advised the Court that he was not pursuing an appeal in relation to Block S.
By Order cited as the Education (Extension of Application of Section 34 B of the Act) (Tagore Memorial Secondary School) Order No. 11 of 1997, the Minister of Education acting pursuant to the provisions of section 34B(10) of the Education Act, Cap. 39:01 deemed the Tagore Memorial Secondary School to be a Government Secondary School.
By the Education (Vesting of Land in the State) (Tagore Memorial Secondary School) Order, No. 29 of 1997), made by the Minister of Education under sections 34B(4) and (10) of the aforesaid Education Act, Blocks S and T became vested in the State.
The appellants are the sons of Hamid Rahaman, deceased and the executors of his estate. They are also the owners by Transport No. 86 of 1997 of the plot of land described as “the south half of lot numbered 63 (sixty-three) or Benab, in the Upper Corentyne Local Government District ……” Blocks S and T formed a part of the lands described in Transport No. 86 of 1997.
It appears that the appellants who are both medical doctors had plans to set up a medical clinic on Block T which served as a playground for the children of the Tagore Memorial Secondary School. Some eight months before the Ministerial Orders of 1997 (earlier referred to) were issued, the appellants commenced work on Block T in pursuit of their plans to establish a medical clinic on that site.
On the 19th July, 1999 they commenced proceedings in the High Court seeking inter-alia, a declaration that the aforesaid Ministerial Orders No. 11 of 1997 and No. 29 of 1997 were null void and of no effect. The principal complaint of the appellants is that the Education Act under which the Minister issued the Orders of 1997 made provision for the Minister to pay compensation to them as owners of the property which became vested in the State, but which he failed to do. They relied on the provisions of section 34B(5) of the Education Act, which provides:
“(5) Where property has been vested in the State by virtue of subsection (2)(b), the Minister may, in such circumstances as he thinks just, pay compensation in such amount and in such manner as may be determined by him for any such property and any determination made by him under this subsection shall be final and conclusive and shall not be called in question in any Court on the ground that the compensation is not adequate.”
And they contended that no compensation having been paid to them by the Minister pursuant to the provisions of Section 34 B(5) of the Education Act, the State's acquisition of their lands was thereby rendered ultra vires and void.
In his written judgment in the Court below, the learned trial judge found that at the time the appellants filed their writ in the High Court, that is on the 19th July, 1999, there was no longer a section 34 B of the Education Act. His Honour so concluded because as he put it,
“Order No. 3 of 1998 authorised certain revisions of the Laws of Guyana, including the Education Act. Pursuant to Order No. 3 of 1998 the sections of the Education Act were renumbered to cater for the inclusion of all the amendments to the Education Act. Pursuant to this Order, No. 3 of 1998, there was no longer a Section 34 B of the Education Act.”
Of this conclusion by His Honour I make the following observations: First, a perusal of Order 3 of 1998 does not support the learned Trial Judge on any of his views of what that Order stipulated. The Order has three paragraphs. They read as follows:
“1. This Order may be cited as the Law Revision (Revision Date) Order, 1998.
2. It is hereby directed that the Revision Date for the first revision after the enactment of the Law Revision (Amendment) Act, 1997 shall be 31st December, 1997.
3. The Law Revision (Revision Date) Order, 1997 is hereby revoked.”
Secondly, one gets the clear impression that His Honour concluded, albeit erroneously, that a renumbering of the provisions of the Education Act led to the removal of section 34B therefrom and that that section thereafter ceased to exist. This was a troubling conclusion coming from the learned judge, since the repeal, cancellation or deletion of a section or words in a section of a statute is achieved by amending legislation passed by the National Assembly and not by a renumbering of the provisions of the statute under a law revision exercise.
In one fell swoop therefore, His Honour without legal justification completely removed the main pillar of the plaintiff's case and substantially affected the thrust of the defence. Both parties were relying on different sections of section 34B of the Education Act.
Naturally, the learned judge found himself on the horns of a dilemma and because of the course he adopted to extricate himself from such a sticky situation, it becomes necessary to set out the substantive elements of the defence pleaded at paragraphs 3, 4 and 5 of the Statement of defence.
Those paragraphs read as follows:
“(3) The defendants specifically deny paragraphs 5, 6 and 8 of the plaintiff's Statement of Claim. The said property was acquired by the State in 1997 pursuant to section 34B of the Education Act, Cap. 39:01, and the Education (Extension of Application of section 34B of the Act) (Tagore Memorial Secondary School) Order No. 11 of 1997 and the Education (Vesting of Land in the State), (Tagore Memorial Secondary School) Order, No. 29 of 1997.
(4) The Ministry of Education acting in accordance with the Provisions of section 34B of the Education Act, Cap. 39:01, and Order 11 of 1997 made thereunder, deemed Tagore Memorial Secondary School to be a government Secondary School.
(5) Further, the Minister of Education, acting in accordance with the Provisions of Section 34 B of the Education Act, Cap. 39:01 and Order 29 of 97 made thereunder, prescribed the boundaries of land appurtenant to the schoolhouse, namely Block S Area – 2.0 acres and Block ‘T’ Area – 2.783 acres as shown on plan by R.T. John, Government Land Surveyor dated 24th July, 1997 being a portion of the South half of lot No. 63 or Benab, the property referred to by the plaintiffs.”
It is obvious from a reading of the aforesaid paragraphs that the respondents case on the pleadings was based on their contention of lawful acquisition by the State of Blocks S and T and that substantial reliance was being placed on the provisions of section 34B of the Education Act.
Having concluded that section 34B of the Education Act was no longer in force, His Honour proceeded to rest his judgment on a finding that the appellants title had been extinguished by operation of law under the provisions of the Title to Land (Prescription and Limitation) Act, Cap. 60:02 and felt that they were confronted with “the insurmountable difficulty of proprietary estoppel.”
Before I examine the learned judge's recourse to these issues in his determination of the case, I would like to refer to certain occurrences during the trial. It appears that the learned Attorney General who appeared for the respondents in the High Court failed to appear for the continuation of the trial on an adjourned date and there was no communication from his Chambers with the judge on that date. As a result His Honour proceeded to close the case for the respondents (defendants in the Court below) and ordered the submission of written addresses. The trial was thereafter further adjourned. On the resumption of the trial on the adjourned date, the learned Attorney General appeared and offered an explanation to the Court which the Court accepted and also made application to have the defence reopened on the following grounds:
- There could be no prejudice to the plaintiffs. 2. The defendants should never be prevented from presenting their entire case. 3. A document was put in by the plaintiffs allegedly written by the Honourable Minister of Education and (that) it was necessary that the Minister give evidence concerning the content of that document.
Attorney-at-Law Fitz Peters who was on that day holding the papers of Senior Counsel Mc Kay indicated that he had come prepared for arguments as ordered by the Court and was not prepared to deal with the application made by the Attorney General. His Honour ruled that the defence be reopened and for two witnesses to be called in support of the defendants case, Dr. Bisnauth, the Minister of Education and Ms. Sylvie Adhar, a former headmistress of the Tagore Memorial Secondary School. Mr. Mc Kay indicated that he would not participate in the cross-examination of the witnesses since in his view, sufficient grounds had not been advanced to the Court for the reopening of the defendant's case.
The defendants were permitted by the Court to introduce viva voce...
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