Can the Privy Council be wrong? Yes, says land surveyor Fitzherbert Reyes

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.