…Mahaicony, ECD land dispute
The Caribbean Court of Justice (CCJ) on Wednesday upheld a High Court decision that two titles for land at Mahaicony, Region Five (Mahaica-Berbice), were fraudulently obtained since another party was in possession of the property.
The appeal was filed by Chandra Ramotar Singh against Bhagwantlall Mossai and Alvin Alves in relation to land at Lot 14 Mortice, Mahaicony River.
According to Court documents, while Singh did not have official title, he was in occupation of the land since 1989 when he agreed to buy the property from some of the heirs of the previous owner. However, unknown to him, Alves and Mossai had conspired to defraud him of the property. As such, the Region’s appellate court ruled that the titles held by the two respondents should be cancelled.
It was noted that Alves is the grandson of the Abrams heirs, who sold the land to Singh back in 1989, but in 1994 he filed proceedings for prescriptive title in the land court by petition, fraudulently claiming that he was in actual possession of the land. The land court, being unaware that Singh was the person in possession, granted Alves a declaration of title in 1997. Alves then sold the land to Mossai, through his brother Ramrattan, two years later. Subsequently, Mossai obtained a transport for the land.
After becoming aware of this, Singh filed court proceedings in May 2003, against Mossai and Alves claiming (i) damages for fraud committed by Alves in the 1994 petition; (ii) damages for trespass committed by both Mossai and Alves; and (iii) an injunction preventing Mossai and Alves from entering or attempting to enter upon the land or selling, mortgaging or otherwise alienating the land. However, he did not seek a cancellation of the fraudulent titles.
Nevertheless, the trial judge, Justice James Bovell-Drakes, having found fraud on the part of Alves, Mossai and Ramrattan, went ahead and cancelled the fraudulent titles while granting an award for damages for trespass as well as the requested injunction.
Mossai and Alves then appealed Justice Bovell-Drakes’ order setting aside the transport and the Court of Appeal, by a majority, declined to cancel the fraudulent titles, because, among other things, Singh had not asked for them to be cancelled in his claim and because the claim was out of time. But Justice Yonette Cummings-Edwards, who was the acting Chief Justice at the time, disagreed with the majority.
Following that ruling, Singh then applied to the Appeal Court for leave to appeal the majority’s decision to the CCJ. However, having failed to file his application for leave to appeal within the time specified by Rule 10.3 of the CCJ (Appellate Jurisdiction) Rules, Singh applied for and obtained permission from the Court of Appeal to extend the time for making the application. Both leave to extend time and leave to appeal were granted by the Court of Appeal.
As such, the CCJ was asked to determine (a) whether Singh had standing to bring a claim for trespass and fraud; and (b) whether the trial judge erred when he set aside the fraudulent transports either, because (i) Singh failed to bring his claim within 12 months after he discovered the fraud as required by section 22(1) of the Deeds Registry Act or (ii) Singh failed to request specifically that the transports be set aside.
The CCJ, in its judgment, found that Singh had capacity to commence court proceedings for trespass and fraud, that he was not out of time for filing his 2003 action and finally, that Justice Bovell-Drakes was correct in cancelling the fraudulent titles.
But the regional appellate court also handed down an important point of procedural law, that is, that the Court of Appeal of Guyana had no power to extend the time for the filing of an application in that Court for permission to appeal to the CCJ.