Bissessar v. Lall (Trinidad and Tobago) [2004] UKPC 48

Judicial Committee of the Privy Council

Case No Privy Council Appeal No. 43 of 2003

Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO

Between

BissessarAppellant

Lall (Trinidad and Tobago)Respondent

Before

Lord Bingham of Cornhill

Lord Clyde

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Date 7 October 2004

[1]:- Lord Bingham of Cornhill Lord Clyde Lord Scott of Foscote Lord Rodger of Earlsferry Lord Walker of Gestingthorpe [Delivered by Lord Scott of Foscote ] The issue in this case is whether Kissoon Lall, now deceased, acquired a good possessory title to six acres of land at Enterprise Village, Chaguanas in Trinidad. Prior to 8 March 1926 one Reedailal was the registered owner of the land. But Reedailal died intestate on 8 March 1926. It is said that Reedailal was the maternal uncle of Kissoon Lall but this has never been proved and it must be accepted, for present purposes at least, that Reedailal died without next-of-kin. The next registered owner of the land was one Bissessar in whose favour a Warrant of Transfer of the land was made on 6 September 1956. The Warrant of Transfer, after reciting the death of Reedailal intestate and without any lawful next-of-kin, purported to transfer the land to Bissessar "for all the estate of the said Reedailal". The Transfer had been duly authorised by the Governor and was made pursuant to section 28 of the Administration of Estates Ordinance (Ch. 8 No. 1).

[2]The action which has led to this appeal to their Lordships was commenced by Kissoon Lall in the High Court of Trinidad and Tobago by writ issued on 4 September 1979. The writ sought a declaration that Kissoon Lall was entitled to be registered as proprietor of the six acres. The Statement of Claim alleged that he had been in continuous and uninterrupted possession of the land since the death of Reedailal. Bissessar had died in August 1957 so the defendants to Kissoon Lall's action were his (Bissessar's) personal representatives, namely, his son Ramsaran and his daughter Deoragee. The Registrar-General, too, was joined as a defendant but took no active part in the proceedings and the action was discontinued against him in April 1998.

[3]It is common ground that Bissessar, although he became the registered owner of the land in 1956, never took possession or went into occupation of any part of the land. It is common ground also that his personal representatives never did so. Indeed it appears that the commencement of the action by Kissoon Lall in 1979 was prompted by the belief that the Bissessar personal representatives were about to assert rights of ownership to the land. On the other hand there is unchallenged evidence that Kissoon Lall, his wife and family had been living in a house on the land and making some agricultural use of some part of the land from, at latest, 1934. The main issue at trial was whether the use of the land that Kissoon Lall and his family had made over the years since 1934 had extended sufficiently to the whole of the six acres to sustain a claim that Kissoon Lall had been in possession of and could claim to have acquired a title to the whole of the land.

[4]For reasons which have not been explained the action did not come to trial until 28 April 1998. By this time some of those who would have been the main witnesses had died. In particular, Kissoon Lall died in October 1980. His widow continued living in the family house on the land until her death in 1992. Nothing seems to have been done to obtain a record admissible in evidence of the testimony that he or she could have given. After Kissoon Lall's death conduct of the action was taken over by one of his sons, Ganase Lall, as administrator ad litem.

[5]As to the issue whether the acts of occupation and possession of the land by Kissoon Lall over the period following the death of Reedailal in 1926 had been of a character and duration sufficient to establish a possessory title to the whole of the six acres, Archie J held that they were not; but the Court of Appeal held, unanimously, that they were. The Court of Appeal did not reject any of Archie J's findings of primary fact. Nor did they identify any misapplication by Archie J of the applicable principles of law. They disagreed, however, with some of the inferences drawn by Archie J from the primary facts and drew from the primary facts inferences that Archie J had not been prepared to draw. Ramsaran Bissessar (Deoragee having died since the Court of Appeal hearing) has appealed to the Privy Council. The issue on the appeal is whether it was open to the Court of Appeal to substitute its own judgment as to the conclusions to be drawn from the primary facts for the judgment of Archie J as to those conclusions.

[6]The period of possession necessary under the law of Trinidad and Tobago for the acquisition of a possessory title is sixteen years (see sections 3 and 4 of the Real Property Limitation Ordinance Ch. 5 No. 7). Both Archie J and the Court of Appeal treated the sixteen year period as commencing on 6 September 1956, the date of the Warrant of Transfer whereby the paper title to the land was transferred to Bissessar. Mr Marcus SC, counsel for Ganase Lall, has submitted to their Lordships that the requisite sixteen year possession period ought to be taken to have commenced not in 1956 but in or shortly after 1929 when the acts of occupation and possession by Kissoon Lall and his family commenced. Their Lordships can see the force of Mr Marcus' submission but the point does not appear to have been raised before Archie J and, although raised before the Court of Appeal, was not commented on by Permanand JA in her judgment (with which Warner JA and Lucky JA simply expressed their agreement). In the circumstances their Lordships are content to proceed on the same premise as the lower courts, namely, that the requisite sixteen year possession period commenced on 6 September 1956. Nonetheless the pre 6 September 1956 acts of occupation and possession are of importance. Nothing that happened on or after 6 September 1956 changed the character of Kissoon Lall's occupation of the land. What he and his family had been doing before that date in cultivating the land, growing crops, gathering fruit from the trees, keeping a cow or two, they continued to do after that date. The story of Kissoon Lall's occupation and possession of the land post 6 September 1956 does not start with a clean sheet. It was a continuance of an occupation and possession that had started many years earlier.

[7]In assessing the significance of acts of occupation and possession for the purpose of deciding whether they have led to the acquisition of a possessory title, the nature of the land in question and the character of the actors are highly relevant. As to the nature of the land, Archie J concluded that the land, although largely unfenced, was not land whose boundaries were undefined. It was of a roughly rectangular shape with the east side, one of the short sides of the rectangle, fronting on to a public road, Allodi Road. The other three sides of the rectangle were bounded by land of other proprietors. Ganase Lall said in cross-examination that "we used to have iron poles to mark the boundaries. From time to time people pull them out" (p. 54 of the Record). The case was, therefore, not one in which the area of land allegedly occupied was indeterminate. Dwellings were erected along the Allodi Road frontage of the land. One was the house in which Kissoon Lall, his wife and at least some of their children lived. Another was a house in which one of their sons, Nandlal, lived. An area of about 15,000 square feet (approximately 3 lots) around each of these houses was cultivated and it is now accepted that Kissoon Lall had acquired at the least a good possessory title to the house in which he lived and the 15,000 square feet of cultivation surrounding it. There was evidence that up to four additional houses, in which other members of Kissoon Lall's family lived, were at one time or other erected on the Aloodi Road frontage but Archie J did not accept this evidence. He thought the witness, Jeewan Lall, another of Kissoon Lall's sons, was exaggerating. The land itself had mainly, but not entirely, been cleared of its original forest vegetation. Fruit bearing trees and bushes had been planted – witnesses referred to mango, cashew, pomerac, pommecythere (sometimes known as golden apple) and plum (which may be another local name for pommecythere). Crops such as peas, corn and sorrel were planted. Some of the land was scrub grassland. A cow or two were kept on the land but, to prevent them spoiling the crops, were kept tethered. One witness referred to a mule being kept on the land.

[8]As to the character of the members of the family, Permanand JA referred to Kissoon Lall as "the patriarch of his family" and said that "from all the evidence it is plain that the appellant and his family are villagers engaged in agricultural work". (p. 161 of the Record)

[9]Archie J expressed his conclusion in the following passage:

"There is insufficient evidence based on the Court's findings of fact to establish actual possession of the entire six acres. What may have been established is possession of a part of the land immediately surrounding his house. On the evidence the acts done on that part of the land were insufficient to establish possession of the whole and I do not accept that Kissoon had the necessary animus possidendi in relation to the whole in 1956 or at any time before the bringing of the action."

(p.47 of the Record)

[10]Permanand JA however thought that "The trial judge failed to give effect to the cumulative evidence with regard to cultivation of the land, more so from the witnesses, Vincent Rogers called by [Ramsaran Bissessar] and Sankar Lall called by [Ganase Lall] and to draw the correct inference having regard to the nature and circumstances of this case that the land was, more or less, overall cultivated. Rogers and Sankar Lall did not reside on the land and gave evidence with regard to the cultivation they saw on the land. They could be considered independent witnesses whose evidence supported each other in this respect." (p. 154 of the Record) After citing passages from the evidence given by Vincent Rogers and Sankar Lal, she continued:

"… it must be borne in mind that there is no challenge to the evidence of Ganase Lall which established that since 1929 his father was on the land. There was no suggestion or cross-examination that anyone else would have planted the fruit trees or that there was anyone concurrently cultivating the land. On a balance of probabilities it must follow that the evidence of the appellant should be accepted with regard to the cultivation on the land."

(p.155 of the Record) And, at page 163 of the Record, she reiterated her view of the inferences to be drawn from the evidence of cultivation:

"… the trial judge stated that what may have been established is cultivation surrounding his house (my emphasis and perhaps meaning the appellant) and found that the appellant did not have the necessary animus possidendi. It is clear that the judge failed to take into consideration that what was more probable was that when the appellant entered on the land with his wife and large family consisting of fourteen children he would have cultivated more or less the entire land, the six (6) acre parcel of land. … There was no evidence of anyone else planting the fruit trees that the witnesses testified that they saw on the land, and also Ganase and Jeewan testified that they assisted their father in the cultivation."

She concluded by expressing the view that the evidence raised "a reasonable inference" as to Kissoon Lall's possession and that "It follows that [Kissoon Lall] had the necessary animus possidendi. "

[11]The inferences drawn by Permanand JA from the evidence of cultivation, namely, that Kissoon Lall had been in possession of the whole of the land through his and his family's cultivation activities and therefore had had the necessary animus possidendi in relation to the whole of the six acres, was not an inevitable inference from the primary facts. But it was one that the evidence to which she referred made it permissible to draw. And their Lordships are very conscious of the great advantage that the learned Justice of Appeal, and her colleagues in the Court of Appeal, enjoy over their Lordships in their knowledge of the character, customs and practices of local villagers in Trinidad living in a rural neighbourhood. Despite the eloquence of Dr Ramsahoye SC, who has said everything on behalf of the appellant, Ramsaran Bissessar, that could be said, their Lordships are not persuaded that the Court of Appeal were not entitled to draw the evidential inferences to which reference has been made. This is not a case in which their Lordships would be justified in interfering with the decision under appeal.

[12]For these reasons, this appeal must be dismissed with costs.