Robert Gormandy and Others v Trinidad and Tobago Housing Development Corporation
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hodge,Lord Briggs,Lord Burrows,Lord Stephens,Sir Guy Newey |
| Judgment Date | 22 December 2022 |
| Neutral Citation | [2022] UKPC 55 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0045 of 2021 |
[2022] UKPC 55
Lord Hodge
Lord Briggs
Lord Burrows
Lord Stephens
Sir Guy Newey
Privy Council Appeal No 0045 of 2021
Privy Council
Michaelmas Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Oliver Radley-Gardner KC
Ramesh Lawrence Maharaj SC
Imogen Dodds
(Instructed by Sheridans (London))
Respondent
Deborah Peake SC
Ravi Heffes-Doon
(Instructed by Signature Litigation LLP (London))
Heard on 6 July 2022
Lord Hodge ( with whom Lord Briggs, Lord Burrows, Lord Stephens and Sir Guy Newey agree):
This appeal is a challenge to the judgments of the High Court and Court of Appeal which held that Mr Robert Gormandy (“Mr Gormandy”) had failed to establish an entitlement to the ownership of land by adverse possession. The land in dispute (“the Property”) is a plot of approximately 4.6 acres in Couva, Trinidad. The Respondent, the Trinidad and Tobago Housing Development Corporation (“the Housing Corporation”), is the registered proprietor of the Property, having acquired title to it by a statutory vesting process in 2004. The Housing Corporation challenges the basis of Mr Gormandy's appeal on the ground that it is in essence an appeal against concurrent findings of fact by the courts in Trinidad and Tobago and prays in aid the practice of the Board that, save in very limited circumstances, it will not consider appeals on questions of fact when there are such concurrent findings of fact.
The Board has repeatedly held that it is its settled practice not to go behind concurrent findings of fact made by the courts below save in very limited circumstances. Absent a legal error which undermines those findings, it is generally necessary for an appellant to show that there has been some miscarriage of justice or violation of a principle of law or procedure which means that what has occurred is not in a proper sense a judicial procedure. The classic statement of this practice is, as is well known, set out in Devi v Roy [1946] AC 508, 521 and the Board has more recently confirmed that position in Central Bank of Ecuador v Conticorp SA [2015] UKPC 11, [2016] 1 BCLC 26, para 4; Alcide v Desir [2015] UKPC 24, paras 24–26; Al Sadik v Investcorp Bank BSC [2018] UKPC 15, paras 43–45; Dass v Marchand (Practice Note) [2021] UKPC 2, [2021] 1 WLR 1788, paras 15–17; Pickle Properties Ltd v Plant [2021] UKPC 6, para 3; Betaudier v Attorney General of Trinidad and Tobago [2021] UKPC 7, para 14; and Glory Trading Holding Ltd v Global Skynet International Ltd [2022] UKPC 35, para 15.
In view of this established practice, the Board has adopted the approach, when faced with an appeal against concurrent findings of fact, of requiring the appellant to set out in a concise manner in the written case, and of inviting the appellant to explain at the outset of the appeal hearing, how he or she can bring the appeal within the limited circumstances which are recognised as exceptions to the Board's practice. In the event that the appellant cannot satisfy the Board that the appeal falls within such circumstances, the Board declines to hear the appeal if it is simply a challenge to concurrent findings of fact and does not call upon the respondent. As the Board sets out below, this is what has occurred in this appeal. Where an appeal is in part a challenge to concurrent findings of fact the Board will decline to hear that part of the appeal which involves such a challenge unless the appellant has satisfied the Board that the case falls within the limited circumstances in which the Board departs from its settled practice.
It is pertinent to this appeal to refer to the relevant statement in Devi v Roy at p 521 in which the Board set out propositions to illustrate the scope of the practice and the special circumstances which would justify a departure from its practice of not going behind concurrent findings of fact. The Board, in a judgment delivered by Lord Thankerton, stated:
“(1) That the practice applies in the case of all the various judicatures whose final tribunal is the Board.
(2) That it applies to the concurrent findings of fact of two courts, and not to concurrent findings of the judges who compose such courts. Therefore a dissent by a member of the appellate court does not obviate the practice.
(3) That a difference in the reasons which bring the judges to the same finding of fact will not obviate the practice.
(4) That, in order to obviate the practice, there must be some miscarriage of justice or violation of some principle of law or procedure. That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the courts could arrive at their finding is such a question of law.
(5) That the question of admissibility of evidence is a proposition of law, but it must be such as to affect materially the finding. The question of the value of evidence is not a sufficient reason for departure from the practice.
(6) That the practice is not a cast-iron one, and the foregoing statement as to reasons which will justify departure is illustrative only, and there may occur cases of such an unusual nature as will constrain the Board to depart from the practice.
(7) That the Board will always be reluctant to depart from the practice in cases which involve questions of manners, customs or sentiment peculiar to the country or locality from which the case comes, whose significance is specially within the knowledge of the courts of that country.
(8) That the practice relates to the findings of the courts below, which are generally stated in the order of the court, but may be stated as findings on the issues before the court in the judgments, provided that they are directly related to the final decision of the court.”
Although in proposition 6 above Lord Thankerton was cautious not to be definitive, it is important to emphasise the high hurdle which his words in proposition 4 entail. There must usually have been a miscarriage of justice or violation of principle in the courts below which is so serious “as to make what happened not in a proper sense judicial procedure at all.” This hurdle, which applies to appeals to the Board, is in addition to the caution which common law courts of appeal exercise, and which the Court of Appeal exercised in this case, before interfering with a trial judge's findings of primary fact and the inferences which the judge draws from findings of primary fact, having regard to, among other things, the advantages which the trial judge has in seeing the witnesses and in reaching conclusions based on an assessment of the evidence as a whole, not all of which may have been set out in his judgment. See for example, Biogen Inc v Medeva plc [1997] RPC 1, Piglowska v Piglowski [1999] 1 WLR 1360, McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477, and the judgment of the Board in Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21; [2014] 4 All ER 418. The Board's settled practice is an additional hurdle over and above such appellate caution: Dass v Marchand (above), para 16.
There are several reasons for this settled practice. First, the Board is a court of second or further appeal. A party, before appealing to the Board, has already had access to justice, including an appeal. Secondly, the trial judge's findings of fact will usually have already been reviewed with care by an experienced court of appeal. Where the two courts have agreed on the proper factual finding, it is unlikely that a court of second or further appeal will be in a position to disagree with any confidence unless something has gone seriously wrong in the judicial process. Thirdly, especially where the case involves no point of law of general public importance, the principle of finality in litigation militates against the use of the resources of the parties and public resources in a further review of factual findings. There is no reason to believe that the second appellate court is more likely to be correct about the facts than the two courts which have already addressed them. Fourthly, in cases which involve the customs, culture and practice of a country or locality, the Board is inclined to give weight to the understanding of local courts of such matters within their jurisdiction. The Board also discusses the reasons for and consequences of this settled practice in its judgment in Sancus Financial Holdings Ltd v Holm (Practice Note) [2022] UKPC 41; [2022] 1 WLR 5181, paras 1–8.
Before the Housing Corporation obtained title to the Property in 2004, it had been owned by a company called Caroni Ltd and its successors in title, the most recent of which was Caroni (1975) Ltd. Mr Gormandy claimed to have entered the Property in 1984, to have staked out its boundaries and planted trees on it in 1985, and to have farmed it in a rotational manner thereafter, initially as a hobby but later on a commercial footing. He gave evidence that his practice of rotational farming was to cultivate small plots within the Property at different periods while leaving other parts uncultivated. He claimed that through this possession of the Property he had extinguished the title of Caroni (1975) Ltd in 2000, after the limitation period of 16 years had expired, pursuant to sections 3 and 22 of the Real Property Limitation Act 1940 (Ch...
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