CCJ rules on Black Bush Polder lease battle

-says courts here failed to apply key Land Registry Act provisions

The Caribbean Court of Justice (CCJ) has ruled in favour of Raymond Joseph over a tract of land at Black Bush Polder, Corentyne and has ordered the Registrar of Lands to issue a new certificate of title to him within six weeks.

Decisions by the High Court and the Court of Appeal here were set aside as a result of the CCJ decision made on Thursday.

Costs were also awarded to Joseph against the respondent, Kamal Mangal which means that an outstanding amount from Joseph to Mangal for the land in question will be cancelled out.

Mangal was not represented at the hearing by the Trinidad-based court despite being served and given the opportunity to be heard, the decision noted.

Joseph had agreed to purchase “all the vendor’s rights, title and interest, in and to homestead No. H.S. 55 Yakusari south, Black Bush Polder, with a small house” that Mangal held on a lease from the State. Subsequently, Mangal, assisted by officers of the Guyana Lands and Surveys Commission (GLSC), obtained a certificate of title for the same land. Mangal then issued proceedings to recover possession from Joseph. The CCJ noted that both the trial court and the Court of Appeal found that the “Respondent (Mangal) had acted fraudulently and that the officers of the Commission (GL&SC) were lax, as held by the trial judge, and deliberately deceitful, as held by the Court of Appeal. However, the courts below held that the Appellant (Joseph) was only entitled to remain in possession for the remaining time on the lease.” Joseph appealed against the order of the Court of Appeal that he surrender possession as the remaining time on the lease had expired. He contended that he should have title to the relevant land.

According to the facts of the case outlined by the CCJ, Mangal was granted a 25-year lease of homestead site on 29th June, 1981. Later, he emigrated to the United States. On 23rd April, 1983, he appointed his brother, Inderjit Poonwah, to be his attorney with power to dispose of the property.

On 16th May, 2003, Joseph entered into a written agreement with Poonwah, in his capacity as attorney for Mangal, to purchase all of Mangal’s “rights, title and interest, in and to” the homestead site for GY$600,000. In the agreement for sale, there was acknowledgement that GY$475,000 had been paid.

Both Thomas and Poonwah attended the offices of the Commission and filed all the relevant documents that were required to effect the transfer of the lease to Thomas. Transfer duty and fees were paid, receipts of which were tendered in evidence. The trial judge found that the sale had been lawfully done and that the parties had complied with the required rules to effect transfer but the transfer did not take place.

Thomas entered into possession of the homestead, planted crops and trees and erected a dwelling. During the trial, evidence was presented that Thomas had made improvements to the property valued at GY$3,500,000. Mangal visited Guyana and confronted Thomas, who he said was well known to him, and Thomas showed him the agreement for sale and the receipts for his payment.

Said the CCJ: “It may be that the real issue was revealed when the Respondent (Mangal) testified that his brother and attorney had not told him about the sale nor given him any money in respect of the purchase price. Later in 2003, he filed a case against the Appellant (Thomas) for possession of the property. On 6th October, 2006, the case was discontinued and Mangal was ordered to pay the costs of Thomas. However, while that case was pending, on 8th February 2005, Mangal obtained a certificate of title to the homestead site from the Registrar of Lands, pursuant to section 71 of the Land Registry Act, Cap 5:02.

Mangal then commenced proceedings in the High Court on August 8th 2005 to recover possession of the land and Thomas defended the action on the grounds that he had purchased it legitimately and counterclaimed for specific performance.

The trial court heard the case and delivered judgment on 26th September, 2011. The judge found that the sale was lawful. However, although the intention clearly was that the homestead site was being sold outright, Mangal’s attorney could only have sold what Thomas had; and that was the remainder of the lease. The court determined that after Mangal had obtained the certificate of title, Thomas became a tenant or licensee of Mangal. The judge found that at the time the action was filed, the lease had not expired so the claim for trespass was premature, and it would be unconscionable to order Thomas to vacate the land and, accordingly, dismissed Mangal’s claim. With regard to the Thomas’s counterclaim, the judge found that the Mangal had acted dishonestly and fraudulently in acquiring title in full knowledge that Thomas had bought the remainder of the lease. While the trial judge criticised the GL&SC for the transfer of title to Mangal after taking the fees to transfer it to Thomas, it concluded that the fact that the GL&SC was not a party to the action limited the court’s options and dismissed the counterclaim.

Mangal appealed to the Court of Appeal. On 25th April, 2015 and judgment was delivered. The court expressed the view that