Robert Gormandy and others v Trinidad and Tobago Housing Development Corporation (Trinidad and Tobago)

On a second or further appeal, the Privy Council ordinarily will not revisit concurrent findings of fact by the courts below. An appellant must identify a limited exception, ordinarily a miscarriage of justice or a serious error or omission in law or procedure which undermines the finding. This hurdle is additional to ordinary appellate caution about disturbing a trial judge’s assessment of evidence. A claimant relying on adverse possession must prove the extent of the land continuously and exclusively possessed. Where that issue was raised by the pleadings and cross-examination, a finding that the claimant failed to prove the boundaries is not procedurally unfair. A judge may use common sense in evaluating credibility, provided the evidence, including contemporaneous documents, is properly assessed.

Mr Robert Gormandy claimed to have acquired title by adverse possession to approximately 4.6 acres of land in Trinidad. He relied on sections 3 and 22 of the Real Property Limitation Act 1940. He later purported to sell part of the land to the other appellants.

Rahim J held that Mr Gormandy had cultivated parts of the Property but had not proved continuous possession of a defined and ascertainable 4.6-acre parcel. The Court of Appeal rejected challenges concerning pleading, judicial notice and the assessment of evidence. The appeal concerned whether those challenges brought the case within the limited exceptions to the Board’s practice of not interfering with concurrent findings of fact.

The Board, in a judgment delivered by Lord Hodge with whom Lord Briggs, Lord Burrows, Lord Stephens and Sir Guy Newey agreed, dismissed the appeal.

1. Concurrent findings of fact. The settled practice stated in Devi v Roy [1946] AC 508 prevents the Board, as a second or further appellate court, from going behind concurrent findings of fact unless the appellant establishes a recognised exception. The usual exceptions involve a miscarriage of justice or a violation of law or procedure which is sufficiently fundamental to undermine the finding or the judicial character of the process.
2. Additional appellate hurdle. The practice is additional to the ordinary caution exercised by appellate courts when reviewing primary factual findings and inferences. The Board applied the approach reaffirmed in Dass v Marchand (Practice Note) [2021] UKPC 2.
3. Pleading and procedural fairness. The extent of Mr Gormandy’s exclusive possession was raised by the Housing Corporation’s defence and was put to him in cross-examination. He therefore bore the burden of proving the boundaries and extent of the land claimed. It was not procedurally unfair to conclude that he had failed to do so.
4. Assessment of evidence. The trial judge had not improperly relied on judicial notice. He had used common sense in assessing credibility and had considered the aerial photographs and the Ministry of Agriculture’s letter. Those materials supported a finding of rotational cultivation of different parts of the Property, rather than continuous possession of the whole.
5. The alleged procedural unfairness and alleged failure to consider evidence did not amount to a miscarriage of justice or qualifying legal or procedural violation. The Board therefore declined to interfere with the concurrent findings and dismissed the appeal.

1. Privy Council: dismissed the appeal.
2. Court of Appeal of the Republic of Trinidad and Tobago: rejected the appellants’ challenges concerning pleading, judicial notice and material evidence, and upheld the High Court’s decision.
3. High Court of Trinidad and Tobago: Rahim J held that Mr Gormandy had not proved adverse possession of the claimed parcel and that the Sale Agreement had no effect.