The Judicial Committee of the Privy Council (JCPC, the British court which is T&T’s final court of appeal) was wrong in its judgment that a portion of (State) lands along the Churchill-Roosevelt Highway was open for private occupation under the common law of “Adverse Possession”.
Fitzherbert Reyes, land surveyor, uses the above term as the title of his recently published book, which gives an overview and analyses of a 2014 decision by the JCPC. The licensed land surveyor, qualified locally and at the University of East London, who has worked professionally in T&T, the region, in Canada, and several European countries, does not stop at calling out what he considers the errors of the JCPC’s decision.
Reyes argues that “while the JCPC has made significant contributions to the development of our jurisprudence, there are concerns about its relevance and alignment with local circumstances,” the latter being the basis of his departure from the decision of the British Court, whose decisions are considered like Caesar’s wife, “beyond reproach” by certain lawyers in the “colonies”.
The issue under scrutiny by Reyes is that of the (adverse possession claim) by the Gayadeen family of 18,000 square feet of land which abuts the CRH in the vicinity of Wallerfield. The land was/is used by the family as a bar-plus. Occupation came up for legal contest when the State was blocked from creating a “statutory road reserve” to abut the highway.
As outlined in Reyes’ book, the JCPC ruled that while the CRH was given over to T&T by the departing US forces (who constructed the roadway) at the end of WWII, it “was not meant or stated to be thereafter used as a public highway, and although the road devolved in a right-of-way, but with no rights as with a road reserve.”
Moreover, the JCPC did not find that the Gazette and 1950 Proclamation “vested the adjoining area of the CRH, as other road reserves do in the normal way.” Further, as stipulated by the JCPC, “in the period 1945-1950, T&T had no statutory mechanism for creating a public right of way.”
Resulting from the judgment, the Gayadeen family was allowed Adverse Possession under the common law of 30 years’ uninterrupted occupation.
The JCPC judgment came after the High and Supreme Courts of T&T ruled in favour of the State, ie, “that all the land described in the 1945 Gazette Notice and is not limited to the actual metalled roadway of the highway.”
The JCPC judgment was based “on a cavalier account of the historical agreement, popular public perception … that the CRH was solely of the US Base Lease rather than a domestic statutory project,” which formed part of the primary conditions of the Base Lease Agreement, states Reyes.
“The ruling rests on the erroneous historical premise that the CRH was solely a creature of the US Base Lease Agreement rather than a domestic statutory project.” The land surveyor states, “The judgment suffers significantly from a lack of robust historical scrutiny, and the absence of specialised expert input, specifically of land surveyors who could clarify the boundaries of the reserve and its historical creation.”
What Reyes, who worked on the CRH project, finds “most troubling is that the judgment elevated a popular perception that the CRH was simply a US driveway to the status of legal fact.” His observations are not merely about rejecting the ruling of the JCPC, but a demand to improve the legal process: “It highlights the vital need for legal scholarship, empirical history, and expert testimony to ground judicial reasoning.”
Importantly, Reyes takes his contestations with the judgment of the JCPC to another arena. The JCPC represents “British Imperial Interests, and does not serve the interests of the masses in the British West Indian plantation colonies,” hence the need to depart from it.
Reyes supports his views not as an anti “radical anti-colonial agitator” but based on the 2009 advice given by the then president of the UK’s Supreme Court “that the law lords of the Privy Council were spending a ‘disproportionate’ amount of time from former colonies, particularly from our region.” Reyes says the words of the Lord Justice “carried the unmistakable tone of ‘weariness, even dismissal’.”
Having argued his case against the decision, Reyes delves into elements of the political, economic and social history of slavery, British conquests and the “foundations of British wealth” from the slave colonies: “The immense wealth extracted under the legal sanctions of bodies like the JCPC did not originate in a free market but in the brutal institution of slavery.”
The author’s study of the issues involved in the case of “Adverse Possession” is detailed and technical for those interested in such matters; but of great interest, even to the non-technical reader like myself, his glossary of terms is of great value.
His book is important in the context of the present questioning of the JCPC-Caribbean Court of Justice issue of which should be the final court of all Caricom countries. Fitzherbert Reyes finds the CCJ far more relevant.
Tony Rakhal-Fraser – freelance journalist, former reporter/current affairs programme host, and News Director at TTT; programme producer/current affairs director at Radio Trinidad; correspondent for the BBC Caribbean Service and the Associated Press; graduate of UWI, CARIMAC, Mona, and St Augustine – Institute of International Relations.
