CCJ rules on Black Bush Polder lease battle

there was no doubt that Thomas was the victim of deliberate deceit and dishonest dealings by officers of the GL&SC. However, having accepted the findings of fact and law of the trial judge, it concluded that it would have been more prudent to have awarded possession at the expiration of the period of the lease, and in the circumstances, the relevant time having elapsed, ordered that Thomas vacate the property. Thomas obtained a stay of execution and after failing to obtain leave to appeal from the Court of Appeal, applied to the CCJ for Special Leave to appeal. The CCJ then ordered that the Application for Special Leave should be treated as the hearing of the appeal.

Absolute interest

The CCJ in its decision said that the agreement was to sell “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”. Thus, it said that the vendor was selling whatever rights he had without stating what they were. Those rights amounted to his leasehold interest combined with his rights under the lease and his right to apply to have a certificate of title to an absolute interest in the land. It was upon this point that the CCJ found that Thomas had properly purchased more than just the remainder of the time on the lease.

The CCJ said that the status of Mangal was that of lessee, with the State being the lessor. The rights that were sold were the rights of a lessee. The lease specified in clause 17 that the transfer of those rights required the permission of the Commissioner (of the GL&SC) and the courts found that the permission was granted. The State did not surrender its rights as lessor to Mangal, who did not acquire the rights of the State.

The CCJ said this is further clarified by an examination of the lease which reveals that the vendor’s rights, title and interest were much more than the unexpired term on the lease. As an example, the CCJ said that paragraph 18 of the lease provides that on termination or expiration of the lease, the lessee shall be entitled to receive compensation for improvements to the land, including growing crops; fruit trees, and permanent buildings, provided that the Commissioner had agreed in writing to their construction.

“This is an important right and interest which the Appellant (Joseph) had purchased. On termination or expiration of the lease, he was entitled to compensation for his improvements of crops, trees and buildings.

“Clause 24 of the lease is even more important. It provides for the lessee to renew the lease for further terms of twenty-five years continuously. The State would have been lessor in perpetuity. This clause contained rights, title and interest which were included in the sale. It necessarily implies that the Appellant (Thomas) was sold the right to have the lease renewed.

“The evidence of the Land Administration Officer that the last lawful lessee was entitled to become a registered proprietor confirmed that the grant of a certificate of title was a right of the lessee. The State policy to convert the lease into a certificate of title constituted a major right, title or interest. It was, in effect, an improvement on clause 24 of the lease. It entitled the leaseholder to convert his lease into a registered proprietorship with indefeasible title to the property. This provided many additional benefits to the landholder, including the removal of the obligations contained in the lease and better commercial and developmental options. This was a right attached to the status of a leaseholder and must have been included in the phrase `all rights’”, the CCJ said in its ruling.

The CCJ said that the High Court and the Guyana Court of Appeal “erred in concluding that the only rights, title and interest the Respondent (Mangal) had at the time the sale was concluded was the remaining term of years on the lease. The rights he had included the right to the value of the improvements on the land conferred by clause 18 of the lease, and the right to continuous renewals of the lease conferred by clause 24, a right which was converted by State policy to a right to become registered as proprietor under the Land Registry Act.

“We therefore had to overturn the interpretation of the agreement for sale that was given by the trial court and approved by the Court of Appeal. The phrase `all rights, title and interest’ includes the right to receive a certificate of title in accordance with the State policy for lease holders in Black Bush Polder”, the CCJ said.

The CCJ further said that although this was a case where the questions of title to the land came under the Land Registry Act, the courts below did not examine the relevant provisions of the Act and apply them to the factual findings that they made. The top court said that under Section 61 (a) of the Land Registry Act the court is empowered to rectify a registration which has occurred as a mistake as in the extant case. Neither the trial judge nor the Court of Appeal applied this section, the CCJ pointed out.

The CCJ’s decision was as follows: (i) The Appeal is allowed and the Orders of the Courts below set aside.

(ii) The existing Certificate of Title to Land No. 2004/712 in the name of Kamal Mangal for land situate at Zone: 631, Block: 631314, Parcel: 55, portion of South Yakusari, Black Bush Polder, Corentyne, Berbice, Guyana is declared to be of no effect whatsoever on the grounds of fraud and mistake of fact pursuant to section 61, Chapter 5:02, Land Registry Act, Guyana.

(iii) The Registrar of Lands do, within six weeks from the date hereof, –

a. Rectify the Register in relation to the said, Zone: 631, Block: 631314, Parcel: 55, portion of South Yakusari, Black Bush Polder, Corentyne, Berbice by replacing Kamal Mangal, the current title holder with Raymond Joseph as registered proprietor; and

b. Issue a new Certificate of Title to Land in respect of the said land situate at Zone: 631, Block: 631314, Parcel: 55, portion of South Yakusari, Black Bush Polder, Corentyne, Berbice, pursuant to section 71 of Chapter 5:02, Land Registry Act of Guyana.

Further, Joseph is to pay Mangal the sum of GY$125,000 outstanding for the transaction to be set off against the order for the payment of costs by Mangal to Thomas. The costs awarded to Thomas against Mangal at the High Court and Court of Appeal totaled GY$1.94m.

Sanjeev Datadin and Jamela Ali appeared for Thomas at the CCJ.