The sale of Lamaha Gardens playfield may have been above board but neither legitimate nor legally sound

Apr 07, 2013 Letters

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Dear Editor,
Land that has been alienated and reserved for a specific purpose through the operation of law cannot be sold as a residue under the original transport without reversal of the mechanism by which the land was alienated initially.
The Chief Co-op Officer has stated on a number of occasions that the sale of Lot 142 Lamaha Gardens, which was initially set aside by the proprietors for the establishment of a community church and subsequently re-designated as a public open space for recreational purposes, was above board, legitimate and legal because the Transport was executed in compliance with the provisions of the Co­operative Society Act, Chapter 88:01. Other writers have argued persuasively that the Civil Service Association Co-operative Society was not properly dissolved and therefore any sale of its assets is unlawful.
In this letter I wish to draw attention to a fundamental point which has so far eluded the previous submissions on this issue, that is: Land that has been alienated and reserved for a specific purpose through the operation of law cannot be sold as a residue under the original transport without reversal of the mechanisms by which the land was initially alienated.
To establish this point requires a succinct examination of legal machinery for establishing a Housing Scheme such as the Civil Service Association Co-operative Society Scheme of Lamaha Gardens.
Explanatory Notes
Where the proprietor of land desires to sub-divide the land into two or more parcels, he is required to cause a Sketch Plan, showing the proposed mode of sub-division to be prepared and submitted to the Central Board of Health for its approval. Section 135 of the Public Health Ordinance Chapter 145 of the Laws of Guyana, stipulates that when that Central Board of Health is satisfied with the proposed layout it shall issue a first Certificate to the Proprietor, which allows the proprietor to seek planning permission from the Central Housing and Planning Authority.
The Sketch Plan must next be submitted to the Central Housing and Planning Authority for its approval. If the proprietor proposes to sub-divide the land into ten or more parcels, at least 20% of the total area of the land must be reserved for public purposes. By Part III of the Town and Country Planning Act Chapter 20:01, the CH&PA is required to “regulate and control the provision and setting of community facilities, including shops, schools, churches, meeting halls, play centres and recreation grounds, in relation to the number and siting of houses.”
When the CH&PA is satisfied with the layout, land use and other matters incidental to the foregoing provision, an approval is granted to the proprietor, based on which approval a cadastral survey of the land must be executed by a Sworn Land Surveyor, mirroring as far as practical the approved design. Duplicated copies of the survey plan must be submitted to the Lands and Surveys Commission, where it is checked for compliance with the aforementioned laws, among other things, and approved and recorded. The original copy of the Cadastral Survey Plan is deposited in the Deeds Registry and forms the basis for the issuance of Transports, leases and other title instruments affecting immovable property, pursuant to section 22 of the Deeds Registry Rules made under the Deeds Registry act Chapter 5:01.
Before the proprietor is allowed to transport any parcel under the new design he must obtain a Second Certificate from the Central Board of Health, which certifies that the proposed infrastructural development works have been implemented in keeping with the initial approval under the first certificate. Where the subject area falls within a municipal district, the Second Certificate must be issued by the Council in the form of a Town Clerk’s Certificate. It is relevant to note here that from time to time, additional areas are bought under the township, at which time all lands designated for public purposes are subsumed under the jurisdiction of the Council for management purposes.
Operation of section 23 of the Deeds Registry Act Chapter 5:01, a Transport of immovable property other than a judicial sale transport shall vest in the transferee the full and absolute title to the property which is indefeasible. However, the Caribbean Court of Justice in Ramkishun v. Fung-Kee-Fung et al (2010) CCJ 2., has noted that “equity was not unknown to the civil law. It was always part of Roman Dutch Law….”, and the Honourable Court was able to trace the history of Roman Dutch Law and found that on equivalent terms, as those in English Common Law, a volunteer who acquired transport was bound to honour and give effect to the equitable interest created by his predecessor in title.
In this case the Civil Service Association Co-operative Society, who is the proprietor of Lamaha Gardens, had no good title to the subject area that could have been alienated and transported without a reversal of the reservation through the operation of law. Therefore, the liquidator had no better title than the proprietor. If this was not the case, then the Liquidator could alienate and dispose of the residents’ undivided interest in the other reserves as set out in the original cadastral plan by L.W. Cox; such as the drainage reserves, alley ways or engineering reserves and the road reserves, since they are all legally held under the residue of original transport. This simple line of argument, in my humble view, should not require the intervention of the CCJ to have the transport rescinded, since the Deeds Registry Act provides for the rescission of transports issued in error. And, a long line of older cases have established that equitable principles can apply to immovable property to the extent that they are compatible with statute law. Therefore, if the undivided equitable interest was created by statute law there is no need to carve out an exception as the done in the Ramkishun case.
One of the arguments offered by the Chief Coop Officer to justify his decision to sell the land was that rates and taxes were owed to the City Council in respect of the property. The well-established mechanisms for judicial sale of land that falls inter arrears are set out in the Deeds Registry Act at Section 29. Therefore instead of trying to ‘make it happen’ by appointing a liquidator, he would have been well advised to invoke those provisions. If that approach was taken, the council would have realized that the land was re-designated as a recreational park and was subsumed under their control, not only through the gestures of the operation of the Civil Service Association Co-operative Society Scheme, but by the operation section 320 of the Municipal and District Council Act Cap. 28:01, which states that “all undivided lands in every council area, except private lands held in joint ownership in common, shall be under the control and management of the council.” When Lamaha Gardens became a part of Greater Georgetown, the subject area was maintained and managed by the City Council as a community play round, for a period of time, which is evident by the annotations on the amended Georgetown Plan, and which would have been revealed if the rule promulgated by the late former Land Court Judge, G.O. Bromes, that required a contemporary Cadastral Plan for each application for title, was adopted by the Registrar of Deeds. Even a simple inspection of the property would have uncovered the fact that after the city council abandoned the playground, the community pooled their resources (consistent with the covenants in their transports) and contributed towards upgrading the facility. This raises the issue of adverse possession, which, according to section 3 of the Title to land (Prescription and Limitation) Act Cap. 60:02, as amended, “Title to land …… or to any undivided or other interest therein” may be acquired by undisturbed possession, user or enjoyment for over twelve years.
Therefore, the residents have acquired prescriptive rights to the land, even if they were of the wrongful belief that the land was a reserve, based on the decision of the CCJ in Tulsie Persaud vs AG (2008) CCJ5.
(Name withheld)

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