The Deeds Registry Amendment Bill of 2012
4750 02 Aug, 2012
Mr. Nandlall: Sir, I rise to speak on Bill No. 11 of 2012, the Deeds Registry Amendment Bill of 2012. I do so, Sir, with a profound sense of pride, having canvas on successfully as a parliamentarian…
Mr. Speaker: Is it to you predecessor?
Mr. Nandlall: …to effect this change and now, Sir, I get the opportunity to do it myself. This Bill, the amendment to it, is quite simple, but the consequences and the profundity of it are very far-reaching, and it makes a most fundamental change to the land law of our country. I heard the utterance from my learned friend on the other side on whether I will be as long as I was just now. Unfortunately I may have to be a bit long, simply because of an indifference to the non lawyers, to in this National Assembly, so that we all understand the complexity of our land law system and the change which we are seeking to bring to it.
We have a very complicated system of land ownership. Historically, the colony of Guyana was ceded by the Dutch to the British in 1803. When the British came here and sought to transplant their legal system as part of the colonising or colonisation process they kept as part of the legal system of Guyana certain aspects of the law which existed in the Roman Dutch time and, for the purpose of this debate, the aspect of the law that was retained, and is relevant, was the aspect of our law that dealt with land ownership. Thus, Sir, today there is a system of land ownership in Guyana that is two-fold. There is the Roman Dutch system and there is, what is called, the Torrens system of land registration which Premier Dr. Cheddi Jagan introduced into our country, importing it from Australia and New Zealand in 1963.
The aspect of land ownership which concerns us here is not the land registration system, but the Roman Dutch system. These two systems exist side by side in our country. Some areas of Guyana are governed by Roman Dutch System and some areas of our country are governed by the Torrens land registration system. They are different systems of ownership and the documents have titled has a different name.
Under the Roman Dutch system the document that have titled is called the transport and under the land registration system the document of title is called the certificate of registration. When we implanted in our country, in 1962 or 1963, the land registration system the plan was to start a reform right across Guyana to make our country be governed by one uniformed system of land ownership, that is, the land registration system. Unfortunately, fifty years, or thereafter that process has not been completed. There is Georgetown, for example, which is governed by the Roman Dutch system, and take my village, Annandale, which is governed by the Torrens system of land ownership, but certain parts of Buxton and Lusignan, the villages before and after Annandale, are governed by transport. There is that complexity obtaining and then.
Sir, when the English law was received as part of the civil law formally in Guyana, in 1916, another complexity was added, that is, two alien registration land ownership system were imposed, alien to the British, because one was from Holland and one was from Australia, and then English principles were imposed upon these two system, and so we have a very complex, we have perhaps the most complex land law in this part of the world, because our land system of ownership straggles almost three different legal systems. Over the years we have identified deficiencies in the systems that we inherited, because we have put all in one melting pot expecting them to function, but some, because of their inherent characteristics, are simply incompatible and cannot work.
This Bill seeks to address one of the deficiencies which has arisen in the transport system. The transport system is governed and administered under the Deeds Registry Act and it recognises only one form of ownership and that is captured by section 22 of the Deeds Registry Act, the relevant portions I will read.
“Every transport of a movable property shall vest in the transferee the full and absolute title to the immovable property or to the rights and interest therein described in that transport subject to -
(a) Statutory claims
(b) Registered encumbrances
(c) Registered interest, registered before the date of the last advertisement of the transport in the Official Gazette
(d) Registered leases before the date of the last advertisement of the transport in the Official Gazette”
Outside of these identified situations, one holds a transport and that transport gives one absolute ownership of that property to which it relates. There was the situation unfolding whereby a person buys or pays down a deposit, sometimes ten per cent, because that is the normal thing, or sometime more, for a property, but in accordance with our present law, in a manner in which it is constructed, that purchaser receives no interest, whatsoever, on that property, because the agreement of sale cannot fall, or does not fall, into one of the established categories listed in the legislation to which that transport is subject. Therefore the transported holder, after he would have entered into that agreement of sale, and after he would have received a deposit on the purchase price, is almost free to deal with the property as he wishes, because the agreement and the passing of money do not confer onto the purchaser any protection whatsoever.
Compared this to the situation in every other parts of the Caribbean, and in England, a stark difference will be found. In Trinidad and in England, and everywhere else in the Caribbean, at least the English speaking Caribbean, the agreement of sale under their system confers upon the purchaser an interest which the law recognises. In those jurisdictions it is called an equitable interest and therefore the title holder or the titular owner is constrained in a subsequent dealing with the property because the property becomes subject to that interest which has been acquired by the purchaser. In Guyana, unfortunately, such a situation does not prevail and our courts have over the last three hundred years, in particular over the last fifty years, have over and over again declared by their written judgement that a purchaser under an agreement of sale, irrespective of the fact that he may have paid off the purchase price, irrespective of the fact that he may have been put in possession, and is in possession, has no interest whatsoever.
If the vendor decides to mortgage that property or if the vendor decides to sell to another purchaser, the first purchaser only recourse is to look into the Official Gazette weekly - I just outlined the difficulties with accessibility of the Official Gazette - and to look for the publication of that conveyance in it in order for him to opposed the conveyance of the property to this new found purchaser. Unless he sees that advertisement in the Official Gazette and he opposes it then the property passes to the second purchaser and he would have lost completely the benefits of that agreement, or all he will be left with is to sue for breach of contract, and that normally is not an adequate remedy because what he wants is the property. Unless he is able to establish in a litigation, which is expensive and which is protracted, that the vendor and the second purchaser were acting in complicit with each other, both knowing of his prior sale and in an effort to defraud him, only them would he be able to set aside that transport and to get that property back convey to him by an order of Court and that Sir, as Your Honour knows, is a most difficult exercise.
This agreement, for the first time in the history of our country, seeks to confer on that hapless purchaser some form of protection. [An Hon. Member (Opposition): [inaudible]… hire purchase.] The hire purchase one will come later. I personally, and I am sure Your Honour has and I am sure all the practitioners in this House, have experienced some of the most tragic stories of people losing their properties in this situation. I walk with me here, Sir, a reported case which I argued all the way at the Caribbean Court of Justice (CCJ)… [An Hon Member (Opposition): and lost.]… and lost, because I was trying to persuade the court to accept the justice of the cause and to try to get it, by judicial interpretation, to put such an interpretation to our extant legislation so as to protect the purchaser in this situation.
I will read briefly, Sir, just the fact of this case and this will demonstrate the situation. The name of the case is Ramdass against Lookie. I appeared for Ramdass. The case was argued all the way at the CCJ. Significantly, because of the complexity and profundity of the situation, the entire CCJ came out to sit - President de la Bastide, Justices of Appeal Nelson, Pollard, Saunders, Bernard, Wit and Hayton. A panel of seven judges, very historic sitting, came out to comprehensively review the land law and all of the assistance that counsel could have given was given. Over one hundred and fifty years of decided cases was presented in a bundle, that was this high, got from the Official Gazette of that time, because those times there was not even reports, and from all the writings could have been found Duke, Treaties on Movable Property, Ramsahoye, The Land Law, Shahabuddeen, The Legal System, all the historical text were referred, all articles written on this matter was forwarded to them and yet they were unable to help. What was most hurtful in this case was the parties here were brothers and sisters. The facts read:
“In 1984 Lookie agreed to sell three parcels of land, thirty six acres to her brother Ramdass for $30,000…”
And for the Berbicians, it was right at Canje.
“…the sale was evidenced by a receipt. Ramdass, who was the brother, entered into possession of the land and cultivated rice and pastured cattle on the land which he had purchased. In 1986 Lookie sold all her land to a third party who they called ‘M’, including that part which was previously sold to her brother and the evidence revealed that her brother had fully paid and these lands are adjacent to each other.”
The sister was living here, the brother was living right next door and the brother went into possession from since 1984, this case, Sir, was decided in 2008. From since 1984 to 2008, this brother was occupying this land, has built his house and was farming this land and the property was passed without his knowledge to this third party, who eventually got transport, and that was the case that went all the way to the CCJ in an effort, by the brother, to get back the land which he would have been living on for nearly twenty-five years.
The CCJ ruled this way:
“Held equitable interest in the immovable property was not recognised and could not be acquired in Guyana. The equitable interest which a purchaser would have gotten in every other country in the Caribbean and in England was not recognised in Guyana. Ramdass had acquired,…”
That the brother who had fully paid and live on the land for thirty years.
“…no equitable interest in the land purchased from Lookie, but merely had a right to seek against Lookie an order for specific performance of the agreement of sale
and that M, the new purchaser, had acquired a clean title.”
Therefore Ramdass, who would have paid for this land, who would have occupied it for twenty-five years, had to remove himself from the land. This case, I believe, more than any other, which I have read, aptly demonstrates the travesty… [An Hon. Member (Opposition): Where is Lookie?] Lookie has died… which obtains in our country and unfortunately we are not in short supply of transported owners of land who are willing to sell it multiple times. Not only sell it multiple times, but then go and mortgage it, on top, to the bank, leaving all the purchasers, forming a line, and a mortgage, on top, of the property, and then the transport owner jumps on a plane and goes to Queens and to Brooklyn, leave four or five families in chaos in this country. We have had that repeatedly, as I speak, I am aware of about four cases pending for trial, dealing with this same situation.
I feel, and my friend Mr. Williams, who called upon me during my budget presentation to bring this Bill, that we are all aware of the travesty and the miscarriages of justice which are taking place in our country as a result of this institutionalised deficiency. Whether I have got it right, Sir, I am not sure. I hope that I have, because I am correcting a system here that has been part of our law since 1803 and even beyond 1750. I do not profess, as I stand here, Sir, to have found a solution to a four hundred years problem. That is why I have assured the Bar Association – it welcomes this Bill – that regulations, if we find difficulty unfolding, will be passed to correct those deficiencies.
The Bill, as I said, is simple in its formulation. All that it seeks to do - one has to read it with the substantive Act, the principal legislation - is to amend the current law to allow for an agreement of sale to be registered against the land and for that agreement of sale to be filed, as of record, at the Deeds Registry and to be annotated in the manner that a mortgage is on the face of a transport so that any person who wishes to subsequently deal with that property would be required to go to the Deeds Registry, as a person should go, even now, and examine the transport to see what encumbrance or encumbrances or what registered interests may have been annotated on the face of the transport and thereby making that person aware that there is possibly a prior agreement of sale and if that person still proceed to sign another agreement of sale, well then that is a matter for that person., but at least we are putting in place a mechanism that would make it substantially more difficult for innocent people to be defrauded of their money when they purport to enter into transactions for the purchase of land held under transport in our country.
The Bill also speaks to how that document can be cancelled and it speaks to the situation where it can be cancelled by the agreement of the parties and, of course, that cancellation will be transmitted to the Deeds Registry. It is in the same way that a mortgage is cancelled and the same way that a mortgage is written off, the agreement will be written off on the transport.
I have already spoken with the Registrar of Deeds and the officers there to create the necessary infrastructure to facilitate the implementation of this Bill if it is passed by this honourable House. The problem that the Bar Association has raised with me is that a person may enter into a farcical agreement of sale simply to encumber a property to avoid it being levied upon. That is one of the concerns raised. Or a dishonest purchaser - now we were trying to guard against dishonest vendors - having entered into an agreement of sale, and now having a registered interest, can now dilate and fail to complete the agreement within the time prescribed.
In relation to the latter, that can happen now in any event and the only recourse that is there is to go to the court and ask for either for specific performance or for rescission, so that position obtains in any event. The first one identified is the deliberate encumbering of a property simply to avoid or simply to encumber it for ulterior reasons, but that can obtain now in any events, because two parties can execute a mortgage and encumber a property in the same way. This Bill must also be viewed in the context of the new High Court rules which shall be soon promulgated and those rules seek in a major way to expedite litigation.
And they provide categories of cases that will be disposed of summarily. All matters relating to land, fortunately, especially as it relates to possession of land, rescission of agreement of sale, setting aside of agreements of sale for land, cancellation of interests on land, would fall into that category of cases that will be expediently dealt with by the courts under the new rules. While I listen to the Bar Association, I remain un-persuaded that its concerns are of such magnitude that it should overturn the greater good which this Bill seeks to address.
Therefore, I believe that I have set out, in sufficient details, what this Bill is about, what its rationale is and what mischief it seeks to address, and I commend it for its second reading. Of course, in my response, I will deal with whatever problems my friends may have with it.
Thank you very much, Sir. [Applause]
Mr. Nandlall (replying): Thank you very much, Sir. I would like to thank both of my learned Friends who spoke on this Bill and who have clearly recognised the importance and the mischief which this Bill is seeking to remedy.
I am constrained in the circumstances to agree for it to be sent to the select committee, but my only reservation is that normally when we send things to select committee they take a long time and I hope, having recognised how important it is and how many people continue to be defrauded and we are going shortly into recess, as of next week in fact, that every effort will be made, the consultations ought not to be protracted and that we all make a concerted effort to expedite this Bill in the select committee and to bring it back for quick passing. I, therefore, ask that the Bill be sent...
Mr. Speaker: You may also add, if you wish, a proviso in terms of time.
Mr. Nandlall: Yes Sir. I will undertake to begin the consultation during the recess period. I know who the lawyers are because they have spoken to me. I see my friend Mrs. Backer is nodding in disapproval. When I say “begin the consultation” I mean I will write them and ask them to put their submissions in writing and have them ready to be presented at the earliest opportunity when Sitting resumes in October.
Ms. Teixeira: Mr. Speaker, just for neatness, let us complete the second reading and then move it to select committee. Procedurally, the select committee will then... Whilst the hon. Attorney General is free to alert people, the parliamentary select committee will then start its own procedures. Could I be as bold to suggest that this matter should return to the House no later than December, 2012? I do not know if that will give sufficient time. It is a very important issue, but it should be here before the end of the year.
Mr. Nandlall: I am grateful for my Chief Whip’s guidance and, of course, her wisdom and experience.
Mr. Speaker: Ms. Teixeira is an expert on parliamentary procedures.
Mr. Nandlall: I know Sir. I hope that I get to speak at her tribute when we pay tribute...years from now, not anything close. [Interruption]
Mr. Speaker: Anything could be said but it is good to respect your adversary. I could say that Ms. Teixeira is one of our most formidable political adversaries and that is something that I do not hide. It is a mark of respect, if I can put it that way.
Mr. Nandlall: She is a champion parliamentarian by any standard or rather of Olympian standard. I am paying tribute to her while she is a sitting parliamentarian.
In accepting my Hon. Colleagues’ suggestion, I am asking that the Bill be read a second time and that it be sent to a select committee to be returned to the House on or before the 1st December, 2012. I think it is consensual that we ought to be able to complete whatever work has to be done to it before that.
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