Victor and Others v West Bank Estates Ltd

• Jurisdiction: Guyana
• Judge: Bollers, J.,Worley, C.J.
• Judgment Date: 04 April 1960
• Neutral Citation: GY 1960 HC 10
• Court: High Court (Guyana)
• Date: 04 April 1960

High Court

Bollers, J. (Ag.)

Victor and Others

and

West Bank Estates Ltd.

L. F. S. Burnham and A. O. H. R. Holder for the plaintiffs.

J. H. S. Elliott for the defendants.

Real property - Immovable property — Prescriptive title — Adverse possession — Equivocal acts — Whether acts of possession — Whether proviso to s. 3 of the Title to Land (Prescription and Limitation) Ordinance, 1952, Cap. 184, is retrospective — Maxim omnia praesumuntur rite esse acta — Presumption rebuttable.

1 Bollers, J., Ag.: This is an action in which the plaintiffs claim the sum of fifty thousand dollars ($50,000) damages against the defendant company for wrongful entry and trespass upon land situate at Plantation Maria's Lodge, which is more fully described in the endorsement of the claim, and in the transport on which they rely (Exhibit “A”) as—

“Lot 33 part of Plantation Maria's Lodge, situate on the west bank of the River Demerara the said lot number 33 (thirty-three) having a facade of 288 (two hundred and eighty-eight) feet by the whole depth of the said estate as laid down and defined on a diagram thereof by the sworn land surveyor, D. Fraser, dated 17th May, 1856, and deposited in the office of the Registrar of the counties of Demerara and Essequibo on the 25th June, 1856, subject to the keeping up of the public road and the drainage to the extent of the facade of the said lot number 33 (thirty-three)”.

2 The plaintiffs also claim possession of the said land occupied by the defendant company and their servants or agents as trespassers since the early part of the year 1959, and an injunction in the usual terms and costs.

3 On October 30, 1959, the plaintiffs filed the writ and on November 2, 1959, they obtained an interim injunction against the defendants in respect of the said land on an order made ex parte by a judge in chambers. On December 7, 1959, by consent of both parties to the action an order was made by a judge in chambers that the affidavits filed by plaintiffs in support of the application for an interim injunction against the defendants and the affidavits in reply by the defendants filed in respect of the plaintiffs' application for an interlocutory injunction were to be treated as pleadings in the action and a speedy trial was then ordered.

4 During the course of the trial and after the first witness who was the first-named plaintiff had given evidence, counsel for the defendant company made application for the discharge of the ex parte order granting the interim injunction on certain grounds, and after hearing arguments on both sides I made an order discharging the interim injunction upon the defendant company and the plaintiffs giving the usual undertaking.

5 Together with this action was heard by consent an application under ss. 36 and 38 of the Deeds Registry Ordinance, Cap. 32, for registration of title in respect of the said lot 33, Plantation Maria's Lodge, as already described. This application for registration of title in respect of the said property was opposed by the defendant company after due advertisement made on order by a judge in chambers.

6 At the commencement of the trial it was made clear by counsel for the defendant company that his clients were only opposing this application in respect of the triangular portion of land shown in the sketch of R. Wilkins marked RAW2, filed with their affidavit and shaded red up to the western boundary of the plaintiffs' cultivation also shown in the sketch. In so far as the remaining portion of the land, which the plaintiffs were alleging formed part of lot 33, Maria's Lodge, was concerned, there would be no opposition. In other words, the defendants were only opposing application for registration of title in so far as the triangular portion of land shown on the sketch as shaded red was concerned. Their affidavits the plaintiffs say that they are the legal and beneficial owners and persons in occupation and possession for upwards of 30 years, nec vi, nec clam, nec precario of the said lot 33, part of Plantation Maria's Lodge; that at all material times they were in possession of the said lot until the month of April, 1959, when the defendants, through their servants and their agents, unlawfully trespassed in a portion of the said lot 33, Maria's Lodge, i.e. a portion commencing along the northern boundary of the said lot about 200 roods west of the River Demerara and extending thence in a westerly direction of the remainder of the whole depth of the said estate by a facade of about 10 roods at the aforesaid point of commencement of the said portion of land into which the defendants entered and 20 roods at the western extremity thereof. The plaintiffs allege that they made repeated objections to the several acts of trespass by the defendants in the months of April, May, August, September and October of the year 1959, but the defendants merely suspended their acts of trespass for short periods after the objections and resumed them again. The acts of trespass complained of are: entry on the aforesaid portion of land and the digging of canals, building of dams and the blocking of the drainage trench of the plaintiffs, thereby impeding the only means of access to the backlands by boats through the said trench, which had been blocked by the defendants. The plaintiffs say further that on October 22, 1959, the defendants carried in three bulldozers and other machines to carry out further works on a dam, which was made by them from excavations on the plaintiffs' land despite protests by the plaintiffs. The plaintiffs finally allege that these acts of trespass caused grave, immediate and irreparable harm, injury and loss to them, as they are being deprived of their use of the land for planting, and of access to the backlands as a result of which they are unable to get timber out of the backlands for the purpose of selling and building houses, and are also unable to bring out mokroo grass which they use for making baskets, upon all of which they depend for their livelihood.

7 The defendant company in reply filed an affidavit by R. A. Wilkins who stated therein that he was a sworn land surveyor and a director of Bookers Sugar Estates, Limited, managing agents and secretaries for the defendant company. At paragraph 3 of his affidavit he states that lot 33 alleged by the plaintiffs to be part of Plantation Maria's Lodge situate on the west bank of the Demerara River is incorrectly described in the schedule to the order granting the interim injunction. He alleges that the said lot 33 is shown on the said plan of D. Fraser as a portion of Plantation Reynestein and does not extend to the whole depth of the estate but is bounded on the west by the public road from whence it extends east to the Demerara River all of which is shown on a certified copy of Fraser's plan marked RAW1. All the land shown on the said plan extending west of the said public road from lots 20 to 33 inclusive by the whole depth of the estate is owned by the defendant company under transport No. 529 of 1927. The defendant company also owns by the same transport the land immediately to the north of the land above described to the whole depth of the estate.

8 In paragraph 4 the defendant company does not admit that the plaintiffs are owners of lot 33 as correctly defined, but lays no claim itself thereto. In paragraph 5 Wilkins alleges that the plaintiffs have never at any time occupied any portion of the defendant company's land west of the road, save that in recent years the plaintiff Victor and other persons without the permission of the defendant company trespassed and planted on the defendant company's land west of the road and of the said lot 33, to a depth of approximately 1,900 feet. In paragraph 6 he alleges that the portion of land on which the plaintiffs complain that the defendant company's servants and agents trespassed does not form part of lot 33, Plantation Reynestein, at all, even as wrongly defined in the schedule to the ex parte order, but is part of adjoining land to the north, the property of the defendant company. He then points out that the land to which the plaintiffs refer is situate to the north of the continuation of a line taken from the northern boundary of lot 33, through the whole depth of the estate as shown on a sketch plan made by him and marked RAW2. The line marked on the said land is the line wrongly claimed by the plaintiffs to be the boundary of the extension of the northern boundary of lot 33, through the whole depth of the estate, and the area shaded red on the said plan is the area on which the defendant company are carrying on their operations. Finally, Wilkins alleges that the line indicated on the said plan as the true boundary line of lot 33 is true and correct and that therefore the servants and agents of the defendant company have never in fact trespassed on lot 33. He then concludes by alleging that the plaintiffs have suffered no injury or loss whatsoever by the action of the defendant company, even assuming that they have any right, title or interest in and the land in question.

9 In reply to this affidavit of R. A. Wilkins, the plaintiffs filed another affidavit in which they allege that it is not competent for the defendants to allege that lot 33 does not extend to the whole depth of the estate, in-as-much as the description of the transport on which they rely, No. 160 of 1875 (Exhibit “A”), says that it does, and the plan of D. Fraser shows the depth of the estate except that lots 20 to 33 were not drawn to the full extremity. They contend as a matter of law that the term “whole depth” and this colony means the usual first depth of 750 roods. They then say,' that the said R. A. Wilkins in the year 1953 did in fact survey the land in question and placed paals at the eastern and western extremities and in the middle thereof, showing the northern boundary in its correct position as...