the republic of trinidad and tobago in the high court of...

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The Republic of Trinidad and Tobago

IN THE HIGH COURT OF JUSTICE

San Fernando

Claim No. CV 2017-01154

BETWEEN

SIAN HUGGINS

CLAIMANT

AND

ANNE DE FOUR

DEFENDANT

Before the Honourable Madame Justice Margaret Y. Mohammed

Date of delivery: 22 January 2019

APPEARANCES:

Mr. Abdel Ashraph instructed by Ms. Nazima Ali-Knox Attorneys at law for

the Claimant.

Mr. David Mark Kidney instructed by Ms. Cecilia Nichole Solozano Attorneys

at law for the Defendant.

JUDGMENT

1. The Claimant and the Defendant were once related as the Defendant’s

sister Jacqueline Martinez-Lee Young (“the Deceased”) was the step

mother of the Claimant. The main issue in the instant action surrounds the

ownership of certain property known as the Lovers Lane property but

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which is properly described as All and Singular the property described in

the Certificate of Title Vol. 1608 Folio 57 being that piece or parcel of land

situate in the Ward of Tacarigua in the Island of Trinidad comprising SEVEN

THOUSAND ONE HUNDRED SUPERFICIAL FEET be the same more or less

delineated and coloured pink in the plan registered in Volume 1608 Folio

55 being portion of the lands described in the Certificate of Title in Volume

1585 Folio 297 and bounded on the North by other portion of the said

lands and by lands of S. Ramgoolam, on the South by other portion of said

lands, on the East by Lovers Lane 10 feet wide, and on, the West by lands

of S. Ramgoolam (“the said property”).

2. During the course of the instant action unlike the name of the said

property, it was clear that there was no love lost between the parties prior

to and after the death of the Deceased.

3. The Claimant is the registered proprietor of the said property. As the

registered owner she has brought this action against the Defendant

seeking the following orders:

(a) A declaration that the Claimant is the registered proprietor of

and entitled to possession of the said property.

(b) A declaration that the Claimant is entitled to the receipts of all

rent and profits from the said property.

(c) An order directing that all rents payable in respect of the said

property or any part thereof be made to the Claimant.

(d) An order that the Defendant do provide to the Claimant an

account of all rents and profits derived from the said property

from 13 April 2013 to the date of such or any order granted

therein.

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(e) Interest and costs.

THE CLAIMANT’S CASE

4. The Claimant became the owner of the said property by Memorandum of

Transfer dated 17 November, 2006 (“the Claimant’s Deed”) and registered

in Certificate of Title Volume 1608 Folio 57. The Deceased transferred the

said property to the Claimant’s father Mr. Leslie Lee Young (“the Lee Young

Deed”) the who then transferred it to the Claimant in 2006.

5. The Deceased and the Claimant’s father, Mr. Leslie Lee Young, rented the

said property to two tenants and the Claimant continued to rent it after

becoming the registered proprietor. She used the proceeds from the rent

for the care and maintenance of the Deceased and her father.

6. In or about the month of July, 2007 the Defendant approached the tenant

of the said property to collect rents on behalf of the Deceased. The

Claimant informed the Defendant that the Deceased was no longer the

owner of the said property. The Claimant then authorized the Defendant

to collect the rent from the two tenants and utilise same for the care and

maintenance of the Deceased until her death.

7. The Deceased died on 13 April, 2013 but the Claimant was only informed

in May 2013. However, the Defendant continued to exercise control over

the said property by collecting the rents.

8. By letter dated 30 June, 2016 the Claimant’s former Attorneys at Law called

upon the Defendant to cease and desist from all dealings with the said

property including but not limited to the collection of rents. The Defendant

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responded by letter dated 7 July, 2016 through her Attorney at Law

refusing the Claimant’s request for possession of the said property.

9. By letter dated 29 July, 2016 the Claimant’s Attorneys at Law wrote the

Defendant’s Attorney at Law providing evidence of the Claimant’s

ownership and entitlement to the said property. A further letter dated the

6 September, 2016 was sent to the Defendant by the Claimant’s former

Attorneys at Law advising her to deliver up possession of the said property

failing which the Claimant would institute legal proceedings. To date the

Defendant is still in possession of the said property.

THE AMENDED DEFENCE AND COUNTERCLAIM

10. There were three limbs to the Defendant’s Defence. Firstly the Defendant

stated that the Claimant did not become the registered proprietor of the

said property since the Claimant’s Deed was executed by her father before

the title to the said property was vested in him thereby rendering him

incapable of conveying it to another.

11. Secondly, the Defendant asserted that the execution of both the

Claimant’s Deed and the Lee Young’s Deed were procured by fraud and

under duress. The Defendant contended that the thumbprint on the Lee

Young’s Deed was not that of the Deceased and if it was the Deceased’s

thumbprint, it was obtained under duress, since the Deceased and the

Claimant did not share a good relationship; the Deceased had diminished

mental capacity since she had suffered a stroke in or around June 2006;

and the Deceased continued to treat with the said property as her own

even after the execution of the Lee Young’s Deed and the Claimant’s Deed.

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12. Thirdly, the Defendant asserted that she was authorized by the Deceased

to collect rent from the said property. It was only after the Deceased’s

death that the Defendant became aware that the Deceased purportedly

conveyed the said property to Leslie Lee Young, who conveyed it to the

Claimant. The Defendant also stated that the rent was used for the medical

care and treatment and general care of the Deceased from mid-June 2006

to her death and thereafter to pay for the Deceased’s funeral expenses

and to carry out repairs and renovations on the said property.

13. The Defendant sought the following reliefs against the Claimant:

(i) A Declaration that by virtue of Leslie Lee Young being the

Deceased’s husband and the Claimant having abandoned

the Deceased since 12 July, 2007 neither Leslie Lee Young

nor the Claimant are entitled to a grant of letters of

administration of the Deceased estate.

(ii) An Order that the Claimant’s Deed be set aside and is null

and void on the basis that it was procured fraudulently

and/or on the basis that the Deceased was coerced into

providing her thumbprint under duress.

(iii) An Order that the Lee Young’s Deed be set aside and is null

and void on the basis that it was procured fraudulently

and/or on the basis that the Deceased was coerced into

providing her thumbprint under duress on it.

(iv) An Order pursuant to sections 10 and 11 of the Wills and

Probate Act1that the Claimant and Leslie Lee Young are to

provide an account of the Deceased’s estate within seven

(7) days of such or any Order made herein.

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(v) A Declaration that the Defendant is the Deceased’s next of

kin pursuant to section 2 of the Administration of Estates

Act.2

(vi) An Order that the Defendant is entitled to apply for a grant

of letters of administration over the Deceased’s estate

pursuant to s. 26A of the Administration of Estates Act.

(vii) Damages for loss of income for the period 30 October, 2016

to present on account of the ejectment of Ms. Maria

Guardiola from the said property by the Claimant.

(viii) Special damages referable to the Defendant’s repair,

maintenance and upkeep of the said property.

(ix) Interest and costs.

THE REPLY TO THE AMENDED DEFENCE AND DEFENCE TO

COUNTERCLAIM

14. The Claimant disputed the Defendant’s averments in her Defence and

Counterclaim and averred that the Defendant is not entitled to any reliefs

in the Counterclaim. In particular, the Claimant challenged the allegations

in the Counterclaim on the basis that title to the said property passed upon

registration and not upon execution and that the Lee Young’s Deed was

registered on 4 April 2007 and the Claimant’s Deed was registered on 1

May 2007.

15. The Claimant asserted that the Defendant did not have any locus standi to

question the validity of the title to the Claimant’s Deed and to bring any

counterclaim. The Claimant stated that the Deceased died testate leaving

a Will dated the 8 July 1998 (“the Will”) wherein Leslie Lee Young was

named as the sole executor and the sole beneficiary. Further, on an

2 Chapter 9:01

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intestacy, the Deceased next of kin was her surviving spouse, Leslie Lee

Young and not the Defendant. Therefore, the Defendant had no sufficient

share, title or interest beneficial or equitable to question the validity of the

Claimant’s title.

16. The Claimant called upon the Defendant to prove that the Claimant’s Deed

and the Lee Young’s Deed were procured by fraud and duress.

17. The Claimant also called upon the Defendant to prove that the rents of the

said property were used for the medical care and treatment of the

Deceased, to pay the Deceased’s funeral expenses and for renovation to

the said property.

THE ISSUES

18. Before the trial started Counsel for the Claimant made submissions on the

preliminary issue of the locus standi of the Defendant. The Court heard the

submissions and directed the parties to limit submissions on the

substantive issues.

19. In addition to the preliminary issue, the substantive issues which arose to

be determined by the Court are:

(i) Whether the Deceased was unduly influenced when the said

property was gifted to Mr. Leslie Lee Young and/or whether

she was under duress;

(ii) Whether the Lee Young Deed and the Claimant’s Deed were

procured fraudulently and/or by duress; and

(iii) Whether the Claimant is estopped from advancing an

entitlement to the rental income and mesne profits accrued by

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the said property since the Deceased’s death by virtue of

proprietary estoppel.

THE WITNESSES

20. At the Trial the Claimant was the sole witness to her case. The Defendant’s

case was supported by the Defendant, Mrs. Afreen Mohammed-Khan,

attorney at law, Ms. Vanessa Lazarus and Ms. Michelle Assie.

THE PRELIMINARY OBJECTION –LOCUS STANDI OF DEFENDANT

21. By notice filed on the 26 October 2018, 2 days before the date of the trial

the Claimant stated that she intended to raise two preliminary issues at

the trial namely that (a) the Defendant had no locus standi to bring and/or

maintain a counterclaim against the Claimant; and (b) the Defendant

cannot succeed in her Defence without having joined the Claimant’s

immediate predecessor in title namely Leslie Lee Young as an interested

party.

22. In the oral submissions, Counsel for the Claimant argued that the

Defendant has no locus standi to attack the Claimant’s title to the said

property since she has no interest in it and she is not representing any

estate which may have an interest in it. Counsel submitted that the

Defendant’s basis for attacking the Claimant’s title was that she was a

loving, caring sister of the Deceased but on the pleadings, the Defendant

cannot obtain the reliefs she sought with respect to obtaining a grant for

the estate of the Deceased since at the time of the Deceased’s death, her

next of kin was her surviving spouse, Mr. Leslie Lee Young who was also

the sole beneficiary and executor of the Deceased’s Will. In support of this

position Counsel referred the Court to section 2 of the Administration of

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Estates Act and the Court of Appeal decision of Rajkumar JA in Naeem Ali

and anor v Lila Seetaram3.

23. It was also argued on behalf of the Claimant that the Defendant also

cannot attack the Claimant’s title and interest in the said property since

the Claimant’s title was derived from the Lee Young’s Deed and Mr. Leslie

Lee Young as an affected party was not joined as a party to the action.

Therefore, the Court cannot make an order to affect Leslie Lee Young’s

title. In support of this position Counsel relied on the learning in Savitre

Lochan v Keith Farfan and Anor4.

24. In response, Counsel for the Defendant submitted that the issue in Naeem

Ali was whether a child was next of kin to apply for a grant of Letters of

Administration of an estate on an intestacy and the Court of Appeal found

that a child was a next of kin ahead of a brother and sister. Counsel also

submitted that there was no reason preventing the Court from adding a

relevant party at this stage of the proceedings. In this regard Counsel relied

on Rule 19.3 Civil Proceedings Rules (“the CPR”) and the decision in

Annette Jennings v Lionel Lewis.5 In any event Counsel argued that the

substantive issues before the Court was the validity of the Claimant’s Deed

and the Lee Young’s Deed and the agreement between the Claimant and

Defendant with respect to the rent of the said property.

25. Sections 37 and 45 of the Real Property Act6 set out the conclusiveness of

the register in the system of registration under the RPA. Section 37

provides:

3 CA S 196 of 2013 4 CV 2008-02015 5 CV 2016-01199 6 Chapter 56:02

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“37. Every certificate of title duly authenticated under the hand and

seal of the Registrar General shall be received, both at law and in

equity, as evidence of the particulars therein set forth, and of their

being entered in the Register Book, and shall, except as hereinafter

excepted, be conclusive evidence that the person named in such

certificate of title, or in any entry thereon, is seized of or possessed

of or entitled to such land for the estate or interest therein

specified, and that the property comprised in such certificate of

title has been duly brought under the provisions of this Act; and no

certificate of title shall be impeached or defeasible on the ground

of want of notice or of insufficient notice of the application to bring

the land therein described under the provisions of this Act, or on

account of any error, omission, or informality in such application or

in the proceedings pursuant thereto by the Judge or by the

Registrar General.”

26. Section 45 provides:

“Notwithstanding the existence in any other person of any estate

or interest, whether derived by grant from the State or otherwise,

which but for this Act might be held to be paramount or to have

priority, the proprietor of land or of any estate or interest in land

under the provisions of this Act shall, except in case of fraud, hold

the same subject to such mortgages, encumbrances, estates, or

interests as may be notified on the leaf of the Register Book

constituted by the grant or certificate of title of such land; but

absolutely free from all other encumbrances, liens, estates, or

interests whatsoever, except the estate or interest of a proprietor

claiming the same land under a prior grant or certificate of title

registered under the provisions of this Act, and any rights subsisting

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under any adverse possession of such land; and also, when the

possession is not adverse, the rights of any tenant of such land

holding under a tenancy for any term not exceeding three years,

and except as regards the omission or misdescription of any right

of way or other easement created in or existing upon such land, and

except so far as regards any portion of land that may, by wrong

description of parcels or of boundaries, be included in the grant,

certificate of title, lease, or other instrument evidencing the title of

such proprietor, not being a purchaser or mortgagee thereof for

value, or deriving title from or through a purchaser or mortgagee

thereof for value.” (emphasis mine)

27. One of the exceptions whereby the indefeasibility of the title can be

challenged is by fraud within the meaning of section 141 of the RPA.

Section 141 provides:

“141. Except in the case of fraud, no person contracting or dealing

with or taking or proposing to take a transfer from the proprietor

of any estate or interest shall be required or in any manner

concerned to enquire or ascertain the circumstances under, or the

consideration for which, such proprietor or any previous proprietor

of the estate or interest in question is or was registered, or to see

to the application of the purchase money or of any part thereof, or

shall be affected by notice, direct or constructive, of any trust or

unregistered interest, any rule of law or equity to the contrary

notwithstanding, and the knowledge that any such trust or

unregistered interest is in existence shall not of itself be imputed

as fraud.”

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28. Section 143 of the RPA limits the persons who can attack the title of a

registered proprietor. It provides that:-

“143. No action of ejectment or other action for the recovery of any

land shall lie or be sustained against the person registered as

proprietor thereof under the provisions of this Act, except in any of

the following cases:

(a) ……….

(b) In the case of a person deprived of any land by fraud as

against the person registered as proprietor of such land

through fraud; or as against a person deriving, otherwise

than a bona-fide for value, from or through a person so

registered through fraud. “

29. There is no definition of what constitutes “fraud” in the context of section

141 of the RPA. In Zanim Ralphy Meah John v Courtney Allsop and Ors7

Kokaram J examined the authorities on the nature of fraud as

contemplated under section 141 to impeach the prima facie indefeasible

title of the registered owner and he summed up the position as:

“25. The fraud of a purchaser of property therefore under the

system of registration in the context of section 141 means

some act of dishonesty. Actual fraud. It is not constructive or

equitable fraud. A deliberate, dishonest trick causing an

interest not to be registered. An object of the transfer to cheat

a man of a known right. Although fraud is fact specific, the

litmus test must be an act of dishonesty, moral turpitude which

is more than mere knowledge of an unregistered interest.

7 CV 2010-04559

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26. Facts which therefore only amount to mere knowledge by the

purchaser of unregistered interests would fail to pass this

litmus test. Facts which impute some further act of dishonesty

will not. Under this system of registration of title therefore if a

purchaser acquires land on which exists clear signs of

occupation he is not guilty of fraud.”

30. Rakumar J (as he then was) in Venice Arthur Charles v Harold Seeratan &

Ors8 referring to Roberts v Toussaint and Ors9 described fraud as:-

“Moreover in actions in which a registered title is being impeached,

fraud means some dishonest act or omission, some trick or

artifice, calculated and designed to cheat some person of an

unregistered right or interest”.

31. At paragraph 21 in Venice Charles Rajkumar J (as he then was) described

the effect of 143(b) of the RPA as:

“21. The effect of section 143(b) is that no action for the recovery

of any land shall lie against the registered proprietor except in the

case of a person deprived of any land by fraud, as against the

person registered as the proprietor of such land through fraud. The

intervenor must establish that she is such a person deprived of land

by fraud, and that the claimant is a person registered as the

proprietor of such land through fraud.”

32. The onus was on the Defendant to demonstrate that she had the locus

standi to attack the Claimant’s title to the said property on the basis that

she has been deprived of an interest in it by acts of fraud by the Claimant.

8 CV 2008-02579 9 (1963) 6 WIR 431

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33. In my opinion, the Defendant failed to do so for the following reasons.

Firstly, under section 143 of the RPA being a loving caring sister of the

Deceased is no basis for challenging the title of the Claimant and there was

no evidence from the Defendant to establish any fraud by the Claimant.

34. The Defendant alleged that the fraud and/or duress was that the Deceased

was coerced into providing her thumbprint on both the Claimant’s Deed

and the Lee Young’s Deed. I have understood this pleading to be with

respect to only the Lee Young’s Deed since the Claimant’s Deed was not

executed by any thumbprint of the Deceased but rather it was signed

and/or executed by Mr. Leslie Lee Young.

35. Based on the Defendant’s pleading she did not accept that the thumbprint

on the Lee Young’s Deed was that of the Deceased. However, the

Defendant failed to adduce any evidence that at the time the Deceased

placed her thumbprint of the Lee Young’s Deed, the Deceased was coerced

to do so.

36. The Defendant testified that Deceased and Leslie Lee Young got married

on 14 July, 1995 but that the Deceased and the Claimant did not have a

good relationship.

37. According to the Defendant in mid-June 2006, the Deceased suffered a

stroke and she was warded at Mt. Hope General Hospital. Mr Leslie Lee

Young informed her 3 days after and she and her niece, Michelle Assie

visited the hospital to see the Deceased but Leslie yelled at them. The

Defendant testified that she visited the Deceased at the hospital every day

until after about one and a half weeks when she went to visit the Deceased

the hospital staff told her that the Deceased’s husband and the Claimant

took the Deceased home at Maingot Road, Tunapuna. She called the

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Deceased and was told by one of the Claimant’s children that the Deceased

was there, so she visited her. When she got there Mr. Leslie Lee Young told

her that the Deceased could not see her at the moment but she still went

up to the room and saw the Deceased lying on a mattress in her own

faeces. The next morning, she went to BS Hosein Factory and got a green

leatherette mattress cover for the Deceased. The Defendant also testified

that the Deceased was not being fed properly and she was not allowed to

carry food for her.

38. The Defendant next testified that on 12 June 2007 she and Michelle visited

the Deceased who grabbed onto her neck and begged her to taker her

away. Her friend Mervin Wiggins picked them up. The Claimant’s son,

Jason grabbed the Deceased handbag and refused to hand it over and Mr.

Leslie Lee Young refused to give her the Deceased’s diapers and

medication. The next day she took the Deceased to Medical Associates and

after, the Deceased told her she wanted to go to Mrs. Mohammed-Khan’s

office in Tunapuna. She told Mrs. Mohammed-Khan about the handbag

and she was advised to go to the police station. The Deceased told Mrs.

Mohammed-Khan that she was afraid of the Claimant holding onto her ID

card and that the Claimant was collecting the Deceased’s rent monies so

she wanted the Defendant to collect rent on her behalf instead. A Notice

was prepared to that effect.

39. The Defendant also testified that she and the Deceased went to Mrs.

Mohammed-Khan to have a draft lease prepared for the said property.

Sometime between September 2007 to March 2008 she took the Deceased

to the Arima Community Centre to get her enrolled in a Social Welfare

Programme. When told she would have to use her thumbprint she

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quarrelled saying “Leslie and them people make me put my thumbprint on

a set of thing and I ain’t doing that no more.”

40. According to the Defendant she and the Deceased continued paying the

water and electricity bills for the said property and she got a receipt

confirming that the property taxes were paid up to 2009. In early 2013 she

and the Deceased went to Mrs. Mohammed-Khan’s office to prepare a

new rental agreement and the Deceased insisted that the Defendant be

named the agent. It was only in 2016 that the Claimant advised that the

Deceased had conveyed the said property to Mr. Leslie Lee Young and Mr.

Leslie Lee Young to the Claimant.

41. In cross-examination the Defendant provided no response when

questioned if she produced any evidence of fraud in this matter. The

Defendant did not agree that she had not produced evidence that the

Deceased was coerced into putting her fingerprint on the Lee Young’s

Deed and she did not agree that there was no evidence surrounding the

execution of the said Deeds. However, the Defendant agreed that the

Deceased wanted to retrieve her ID card but that she never said anything

about wanting a Certificate of Title. She did not agree that it was because

the Deceased never requested her Certificate of Title, and she did not

know that the Certificate of Title was in the possession of the Claimant

since 2007.

42. Based on the Defendant’s evidence the Deceased was ill with a stroke in

mid-June 2006. After being afflicted with the stroke the Deceased was

cared by her spouse Mr. Leslie Lee Young and the Claimant for about 1 year

until mid-June 2007 when the Defendant took the Deceased to live with

her. Although the Defendant said she visited the Deceased while the latter

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was cared for by her spouse there was no evidence that some time in

November or December 2006 the Deceased indicated to the Defendant

with whom she shared a close relationship that the Deceased was coerced

into placing her thumbprint on any document.

43. Ms. Michelle Assie testified that when she visited the Deceased in the

hospital she was yelled at by Mr. Leslie Lee Young. She recalled the

Defendant complained that the Claimant and Leslie Lee Young had the

Deceased without toothbrush and personal items and that the Defendant

informed her that Mr. Leslie Lee Young had removed the Deceased from

the hospital and had her at the Maingot Road property. She also recalled

agreeing to go with the Defendant to BS Hosein Factory to get a mattress

cover for the deceased but she did not go. She testified that on 12 June

2007 the Deceased was adamant she wanted to leave and held on to the

Defendant’s clothing begging her to take her home. The Defendant’s

friend, Mervin came and picked them up and they left with the Deceased.

44. In cross-examination, Ms. Assie admitted that she did not know an

attorney at law in Tunapuna named Ms. Montrose and she never visited

that office and so she could not state what happened in that office on 14

November, 2006 or 17 November, 2006. She also could not tell the Court

anything about the Certificate of Title relating to the said property.

45. Ms. Assie’s evidence was of little value in assisting the Defendant’s case

since she had no direct knowledge of the Deceased’s action surrounding

the execution of the Lee Young’s Deed and the Claimant’s Deed.

46. Mrs. Afreen Mohammed-Khan testified that she was retained by the

Deceased for close to 10 years prior to 2007. The Deceased made it clear

to her that she and the Claimant did not get along. She was not aware that

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the Deceased had any other attorney at law. In 2006 the Deceased stopped

attending her office. In 2007 the Deceased visited her office and

introduced the Defendant to her and she indicated that she had suffered

a stroke and was living with Mr. Leslie Lee Young and the Claimant in

Tunapuna. The Deceased told her that she wanted the Defendant to begin

taking care of her tenants at the said property and she told the Deceased

that she could always come back to her when she wanted any new rental

agreements done to reflect the Defendant’s agency. In 2013 the Deceased

asked Mrs. Mohammed-Khan to prepare a rental agreement stating that

the Defendant will collect rents.

47. In cross-examination Mrs. Mohammed-Khan accepted that she had clients

who had different attorneys before. She said that the Deceased came to

her to recover certain items but one was not a Certificate of Title. When

asked, she said she did not have any medical training.

48. The purpose of Mrs. Mohammed-Khan’s evidence was to establish that

she was the only attorney at law whom the Deceased entrusted her legal

work to. However, this was not entirely accurate since by Mrs.

Mohammed-Khan’s own admission she had clients who also had other

attorneys at law. While Mrs. Mohammed-Khan’s evidence was about her

professional relationship with the Deceased before and after the execution

of the Claimant’s Deed and the Lee Young’s Deed, she provided no

assistance to the Court on the events surrounding the execution of the

Deeds.

49. Vanessa Lazarus was one of the tenants on the said property. Her evidence

was that she was a tenant from 2007 and she only paid rent to the

Deceased and the Defendant.

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50. The Claimant’s evidence in chief was that on 4 April, 2007 her father

became the registered proprietor of the said property when the Deceased

transferred it to him. On 1 May, 2007 she became the registered proprietor

and owner when her father transferred it to her. The Certificate of Title

was given to her in May 2007 following discussions with her father that the

said property should be in her name so that she could collect the rent

which was to be used to care for the Deceased. She stated she was

unfamiliar with the transactions resulting in her father being endorsed as

the registered proprietor and her becoming the registered proprietor. She

recalled taking her father and the Deceased to the lawyer’s office in

Tunapuna on several occasions but was never with them when they were

transacting their business. She did not know on what occasion the

transactions relating to the said property took place.

51. In cross-examination, the Claimant testified that she took, her father, Mr.

Leslie Lee Young to Notafari Montrose because he had a tenant at his home

in Arima. She did not know if any of the visits concerned the said property.

She said that in 2006 when she dropped off the Deceased and Leslie to the

lawyer’s office she did not know what they were going to do.

52. There was no evidence from these witnesses with respect to the

circumstances surrounding the execution of the Lee Young’s Deed and the

Claimant’s Deed. Indeed there was a notable absence of evidence

surrounding the execution of the Lee Young’s Deed and the Claimant’s

Deed. In the absence of such evidence it is plausible that the Deceased

executed the Lee Young’s Deed voluntarily since he was her spouse who

was caring for her and this was consistent with her wishes in the Will where

she left her entire estate to him.

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53. Secondly, according to the Will of the Deceased the sole executor and

beneficiary of the Deceased’s estate was her surviving spouse Mr. Leslie

Lee Young. According to the Defendant’s evidence she was the sister of the

Deceased and that the Deceased was survived by her spouse at the time

of her death. The Defendant did not dispute that the Deceased died testate

leaving the Will where the Deceased appointed her spouse Mr. Lee Young

her executor and where Mr. Lee Young was the sole beneficiary of the

Deceased’s estate. In cross-examination the Defendant admitted that she

felt entitled to the said property because she took care of her sister, the

Deceased.

54. The Defendant has not challenged the validity of the contents of the Will

of the Deceased. She has only challenged the validity of the Claimant’s

Deed and the Lee Young’s Deed on the basis of fraud and duress. As such,

even if the Defendant succeeds in setting aside the Lee Young’s Deed and

the Claimant’s Deed, the said property would devolve to the Deceased’s

estate where the sole beneficiary is the Deceased’s spouse Mr. Leslie Lee

Young and not the Defendant. Again, the Defendant failed to establish any

locus standi as having an interest in the Deceased’s estate.

55. Thirdly, even if the Deceased had died intestate the Defendant would still

not have been entitled to an interest in the said property since the

Deceased died leaving her spouse Mr. Leslie Lee Young, who is entitled to

the Deceased estate. In any event, section 26A of the Administration of

Estates Act deals with the distribution of the estate to the next of kin where

“the intestate leaves no spouse, no issue, no cohabitant and no parent”.

According to this section only then the intestate’s estate is distributed to

or held on trust for his next of kin living at the time of his death and the

said section sets out the order and manner of entitlement of the next of

kin. “Next of kin” is defined in section 2 of the Administration of Estates

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Act in relation to a deceased person as “(a) brothers and sisters of the

deceased.” Rajkumar JA in Naeem Ali, concluded that a purposive

construction of “next of kin” in the Administration of Estates Act meant

that the issue of a deceased was entitled to apply for the estate of a

deceased who died intestate before more distant relatives of a deceased.

In my opinion the case of Naeem Ali is not relevant given the factual matrix

of the instant action since it was not in dispute that the Deceased died

leaving the Will; the sole beneficiary and executor was her surviving spouse

Mr. Leslie Lee Young and the Deceased did not have any children.

56. Fourthly, the Defendant did not seek to join any party to represent the

interest of Leslie Lee Young whose interest in the Lee Young’s Deed would

be adversely affected. In Savitre Lochan v Keith Farfan and Ors10

Rampersad J applied the learning of the Privy Council decision in Penang

Mining Co Ltd v Choong Sam11. The Court refused to set aside a deed on

the basis that one of the parties of the said deed was not a party to the

Court action. The Court was of the view that to do so would have been an

injustice since the absent parties’ rights would have been adversely

affected without them being present to defend a claim which affected its

rights.

57. Rule 19.2 CPR deals with the procedure and timing of adding a party to

proceedings:

“Change of parties—General

19.2

(1) This rule applies where a party is to be added or substituted.

10 CV 2008-02015 11 [1969] 2 MLJ 52

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(2) A party may add a new party to proceedings without permission

at any time before a case management conference.

(3) The court may add a new party to proceedings if—

(a) it is desirable to add the new party so that the court can resolve

all the matters in dispute in the proceedings; or

(b) there is an issue involving the new party which is connected to

the matters in dispute in the proceedings and it is desirable to add

the new party so that the court can resolve that issue.

(4) The court may order any person to cease to be a party if it

considers that it is not desirable for that person to be a party to the

proceedings.

(5) The court may order a new party to be substituted for an

existing one if—

(a) the existing party’s interest or liability has passed to the new

party; and

(b) the court can resolve the matters in dispute more effectively by

substituting the new party for the existing party. (6) The court may

add or substitute a party at a case management conference. (7) The

court may not add a party after a case management conference on

the application of an existing party unless that party can satisfy the

court that the addition is necessary because of some change in

circumstances which became known after the case management

conference.”

58. Rule 19.3 CPR states that a claim should not fail merely because a relevant

party was not added and Rule 19.5 CPR permits the Court to add a new

party without application. In Annette Francois Jennings Mohammed J

after considering the learning in Savitre Lochan and Part 19 CPR concluded

that a Court when deciding whether to exercise the discretion to add a

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party with or without an application must have regard to the overriding

objective, the facts of the case and Part 19 CPR.

59. In my opinion, it was not consistent with the overriding objective to permit

Leslie Lee Young or the estate of the Deceased to be added as a party at

the commencement of the trial for the following reasons. Firstly, the

Defendant was always aware that one of the reliefs which she sought in

her Counterclaim was to set aside the Lee Young Deed and as such had a

direct impact on Mr. Leslie Lee Young. In my opinion, the onus was on the

Defendant to join Mr Lee Young as soon as she filed her Counterclaim as

an interested party due to the nature of the relief sought in her

Counterclaim. It was not the duty of the Claimant to incur this expense.

60. Secondly, if Mr. Leslie Lee Young was added as a party at the trial stage of

the proceedings, the effect would have been to abort the trial, and the

Claimant would have to incur additional expense to consider a new case

with Mr. Lee Young as a party when it was not her fault that he was not

joined in the first place. The Court had already spent considerable time in

case management of the instant action from October 2017 to June 2018

where the Defendant had ample opportunity to add Mr. Lee Young as a

party.

61. Thirdly, the evidence on behalf of the Defendant and her witnesses from

their witness statements were lacking in proving any basis of her claim that

there was any fraud or duress in the procurement of the Lee Young Deed.

Therefore, it would not have been the best use of the Court’s resources to

adjourn the trial to add Mr. Lee Young when there was no evidence to

support the setting aside of the Lee Young’s Deed.

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62. The aforesaid reasons for upholding the Claimant’s objection to the

Defendant not having any locus standi to obtain the reliefs sought in the

Counterclaim means that it must fail. However, for completeness I will deal

with the last limb of the Defendant’s Defence.

THE EFFECTIVE DATE OF THE LEE YOUNG’S DEED AND THE CLAIMANT’S

DEED

63. One limb of the Defendant’s Defence was that the Claimant did not

become the registered proprietor of the said property since the Claimant’s

Deed was executed by her father before the title to the said property was

vested in him thereby rendering him incapable of conveying it to another.

64. A Deed of Gift takes effect from the date of registration. Section 18 (2)

Registration of Deeds12 provides that:

“(2) No Deed of gift or settlement, until registered in manner

hereinbefore prescribed, shall be effectual to pass any estate or

interest in any land sought to be affected thereby, or to render such

land liable as security for the payment of money.

(3) For the purposes of this section-

“Deed of gift” means any Deed, or any instrument under the

provisions of the Real Property Act, whereby any real property is

transferred from one person to another gratuitously.”

65. It was not in dispute that the Lee Young Deed was executed on the 14

November 2006 and it was registered on the 4 April 2007. The Claimant’s

Deed where Leslie Lee Young transferred the said property to the Claimant

12 Chapter 19:06

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was executed on the 17 November 2006 two days after the Lee Young

Deed was executed and registered on 1 May 2007 almost one month after

the Lee Young Deed was executed.

66. Therefore, at the time the Claimant’s father transferred the said property

to the Claimant, he was vested with the said property for almost one

month. As such there is no merit in the Defendant’s allegation that the

Claimant’s father was not vested with the title of the said property before

he executed the Claimant’s Deed.

CONCLUSION

67. The Defendant has failed to satisfy the Court that she has the locus standi

to attack the Claimant’s title to the said property. Firstly, under section

143 of the RPA a person who has been deprived of an interest in property

by fraud can challenge the ownership of it. The Defendant failed to satisfy

the Court that she was deprived of an interest in the said property by fraud

and being a loving caring sister of the Deceased was no basis for mounting

such a challenge. Secondly under the Will of the Deceased the sole

executor and beneficiary of the Deceased’s estate was her surviving

spouse Mr Leslie Lee Young. However the Defendant did not challenge the

validity of the contents of the Will. Even if the Defendant was to succeed

in setting aside the Lee Young’s Deed and the Claimant’s Deed, the said

property would devolve to the Deceased’s estate where the Defendant is

not a beneficiary. Thirdly, even if the Deceased had died intestate, the

Defendant would still not have been entitled to an interest in the estate of

the Deceased since she was survived by her spouse. Lastly, the failure by

the Defendant to join any party to represent the interest of Leslie Lee

Young in the instant matter meant that the Court cannot make any orders

to bind his interest.

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68. In any event, the Defendant’s Defence and Counterclaim must fail since

she failed to satisfy the Court that the Deceased was unduly influenced

when she transferred the said property to Mr Leslie Lee Young. The

Defendant failed to adduce any sufficient evidence to substantiate a claim

for fraud and/or duress in the making of the Lee Young Deed and the

Claimant’s Deed.

69. The law is also clear as it relates to the time when a Deed of Gift takes

effect and the Lee Young Deed having been registered before the

Claimant’s Deed, entitled Mr Leslie Lee Young without more, to transfer

the said property to the Claimant.

70. Accordingly, the Claimant is entitled to all reliefs sought in her claim and

the Defendant’s Counterclaim is dismissed.

ORDER

71. Judgment for the Claimant namely:

(a) It is declared that the Claimant is the registered proprietor of

and entitled to possession of the said property.

(b) The Claimant is entitled to the receipts of all rents and profits

from the said property.

(c) All rents payable in respect of the said property or any part are

to be made to the Claimant.

(d) The Defendant do provide to the Claimant an account of all

rents and profits derived from the said property from 13 April

2013 to the date of this order.

(e) The Registrar to surcharge and falsify the aforesaid account.

72. The Defendant’s Counterclaim is dismissed.

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73. The Defendant to pay the Claimant’s costs of the claim in the sum of

$14,000.00 and the Counterclaim in the sum of $14,000.00.

74. Liberty to apply.

Margaret Y Mohammed

Judge

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