IN THE HIGH COURT OF JUSTICE AND

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No CV Between ZORIDA GEROLD Claimant AND KAZIM MOHAMMED 1 st Defendant SAYEED MOHAMMED 2 nd Defendant Before the Hon. Madam Justice Eleanor Joye Donaldson-Honeywell Appearances: Mr. Anand Seepersad, Attorney-at-Law for the Claimant Mr. Leon Kalicharan and Ms. Karina Singh, Attorneys-at-Law for the Defendants Delivered on: March 16 th, 2017 JUDGMENT Page 1 of 16

2 I. Introduction 1. The crux of the matter in this Claim is a dispute between a sister and brother over a family home at #4 Last Street, Caroni Village, Caroni, in the Ward of Tacarigua [ the subject property ]. It was initially owned solely by their father Hakim Mohammed since Over the years their father had taken steps to have the ownership of his property shared with other family members by conveyance to them as joint tenants with himself. Accordingly, in 2001 his wife and his son Kazim [ the First Defendant ] became joint tenants. The family members including Hakim and the parties eventually all resided abroad so enjoyment of the ownership of the subject property was limited to the proceeds of its rental. There was also the use of rooms by family members for accommodation on visits to Trinidad and for storage. 2. After Hakim s wife s death in 2008 the property vested jointly in the First Defendant and his father Hakim. If things had been left as is, on Hakim s death the 1 st Defendant would have become sole owner of the subject property. However, it is contended by his sister Zorida Gerold, [ the Claimant ] that in 2009 their father again decided to extend the sharing of ownership of the subject property. This time he included the Claimant and his grandson, the Second Defendant as joint tenants with himself. 3. During the years after Hakim s death in 2012 a dispute arose between the parties when the Claimant says she was excluded from enjoying her joint ownership of the property as her brother, the First Defendant had returned to live there and occupied it without allowing her to use any part as her own. She sought to have the Defendants pay her for her share of the subject property. The Claimant s request was formalised in a pre-action protocol letter dated 25 th June 2014 but there was no response from the Defendants. As a result the Claimant filed the instant Claim on August 26, The First Defendant, supported by his son the Second Defendant, denies the Claimant s entitlement to any share in the ownership of the property. II. Pleadings 5. The Claimant s action against the First and Second Defendants is based upon a Deed of Conveyance executed on 16 March, 2009, registered as DE granting Page 2 of 16

3 her ownership of the subject property as a joint tenant with the Defendants. The said deed purports to convey title from the names of the First Defendant and their father Hakim [ the Deceased ] to that of the Deceased, the First and Second Defendants and the Claimant as joint tenants. 6. The Claimant claims under this title her right to her one third share in the property. Her claim asks that the property be sold for the best price obtainable and the proceeds be distributed in equal shares amongst the parties. This claim, she avers, comes only after requests for the Defendants to purchase her one-third share through Pre-action Protocol Letters and the Defendants failure to respond to such requests. Further she claims that it is impossible for the parties to co-exist and share the property and that it is currently being occupied by the Defendants to her exclusion. 7. The Defendants defence is that the deed upon which the Claimant relies is fraudulent. The First Defendant claims that he refused to sign the said deed and the Second Defendant avers that the document he signed was of a different kind and/or he executed the deed under a mistake as to its nature and contents. He claims alternatively that he, along with the Deceased, was fraudulently induced to sign the deed by the representation by the Claimant and Mr. Victor Hosein, Attorney-at-Law for their father, that the document was merely for the administration of the estate of their father after his death and to ensure that the property was not sold. 8. The Defendants in their Defence and Counterclaim filed on December 31, 2015 pleaded that the events leading up to the signing of the deed were as follows: a. The Claimant, on a visit to Trinidad with her father Hakim, contacted the Second Defendant via telephone and made representations that a document would be prepared by an Attorney to give her authority to oversee and to ensure the property was not to be sold should the First Defendant die. b. The Second Defendant attended the office of Mr. Victor Hosein [ the Attorney ] and signed the document in the presence of his aunt and the Attorney on 16 March, c. The Second Defendant was at the time also visiting on vacation in Trinidad and attended the Attorney s office prior to leaving to visit his friends. The Second Page 3 of 16

4 Defendant was eager to complete the business and leave and so he signed the papers quickly where directed to by the Attorney. He was unaware of the contents of the document as he only had sight of the signing page and relied on the guidance of the Claimant. d. At the time of signing, the document only had the signature of the Claimant on it. The Second Defendant never paid the consideration in the sum of Seven Hundred and Fifty Thousand Dollars ($750,000.00) at the time of signing. e. The Second Defendant was never advised of his right to consult an independent Attorney-at-Law and did not have an opportunity to do so. He was unable to exercise his own independent will and judgment with full appreciation and/or knowledge of the nature and effect of the transaction. f. As it relates to the First Defendant who had travelled from the USA to Trinidad as well, the pleading is that he was told by the Claimant about a document to be signed for her to take charge of the subject property. It is further pleaded that although he attended at the office of the Attorney after the Second Defendant and the Claimant and read a document he did not sign it because he realized it was a Deed of Transfer of the property to the Claimant. 9. The Defendants in their counterclaim seek a declaration that the March 16, 2009 Deed is void and ask that it be expunged from the Protocol of Deeds for the year In addition, the First Defendant seeks a declaration that he is the sole surviving owner based on the earlier Deed dated 2001 and/or he is entitled to an equitable interest in the subject property based on money spent for maintenance and repair of the premises. That equitable interest, he claims, should be accounted for in the proceeds of sale of the property should the subject property be sold. 10. The Claimant, in her November 10, 2016 Reply to the Defence and Counterclaim, denies that the 2009 deed was created at her insistence and avers that it was at the request of the Deceased that this was done. She pleads that the Deceased resided with her in New York before his death and the reason for his visit to Trinidad in March 2009 was to include herself and his grandson, the Second Defendant as joint owners in the subject property by way of the deed. Page 4 of 16

5 11. She further reinforces her initial pleadings by averring that the First Defendant was hesitant to sign the Deed but did not object to the instructions of the Attorney due to respect for their father. Although, she alleges, he was hesitant to sign, she says he eventually did so in the presence of the parties. She states that Shaliza Mohammed, who is the sister of the Claimant and First Defendant, was present and signed as a witness. 12. In answer to the allegations of forgery raised in the Defence the Claimant avers that the First Defendant may have signed differently to purposefully leave room to disclaim the signature thereafter. Further she claims that the signature of the Deceased may appear different due to his medical condition. He had undergone kidney dialysis treatment earlier that day. 13. With regard to the Counterclaim, the Claimant in her said Reply admits that the First Defendant would be entitled to a legal and equitable interest in the property amounting to the expenses incurred less the benefit derived from living rent free. There was no pleading or evidence led however as to the quantum of rent forgone by the Claimant. The Claimant sought in the Reply an order that a valuation be done to settle the share of the Claimant at current market value. It was conceded that any expenditure less rent benefit enjoyed by the First Defendant should be deducted and then the one third shares of each party calculated from the net value. 14. In light of these admissions and concessions it appeared that an avenue for settlement talks was opened by the Claimant. The recommendation given during Case Management Conference [ CMC ] that mediation services be accessed to facilitate resolution of the dispute was accepted by both parties. Mediation did not however result in resolution of the issues of concern and at an adjourned CMC, parties were directed to file and exchange witness statements as well as propositions of law. A pretrial hearing was scheduled for September 30, At the pre-trial hearing, in addition to addressing a number of evidential objections based on which parts of the Defendants Witness Statements were struck out a determination had to be made with regard to an application filed by the Defendants on the same day. The Notice of Application sought orders under Part 33.6 of the Civil Proceedings Rules, 1998 [ CPR ] as amended that Mr. Glen Parmassar, Forensic Page 5 of 16

6 Document Examiner be appointed as the single expert [ the Expert ]. Draft instructions to the Examiner prepared by the Defendants Counsel were attached to the application and the Defendants sought an order that the parties jointly bear the costs of the Application. 16. The Claimant did not agree to share the costs of the expert, as, in communication between the Attorneys prior to the filing of the Defendants Application, Counsel for the Claimant had explained that he did not agree to the necessity of an expert. His position was more fully explained in closing submissions filed on February 3, 2017 as follows: The Claimant is adamant that Hakim Mohammed, Kazim Mohammed, Sayeed Mohammed and herself signed the deed. She was present, participated and witnessed all the parties sign the deed. The Claimant does not need an expert witness to determine whether the signatures of Hakim Mohammed and Kazim Mohammed are on the deed since the Claimant was present and witnessed the entire process. The Defendants are denying that the signatures of Hakim Mohammed and Kazim Mohammed on the deed were theirs but he who accuses must prove. This position was conveyed to the Defendants. 17. It was in these circumstances that an order was made on September 31, 2016 granting the Defendants Application in terms of a draft order submitted, but with the amendment that they would solely bear the expert s fees and expenses. III. Issues 18. The issues in the present case are as follows: a. Whether the signature of the First Defendant on the Deed is a forgery; b. Whether the signature of the Deceased on the Deed is a forgery; c. Whether the Second Defendant was coerced or fraudulently led to believe that the document he was signing was not a Deed of Conveyance d. Whether the First Defendant is entitled to an equitable interest in the property due to expenses incurred in upkeep and maintenance of the property Page 6 of 16

7 IV. Analysis of the Law and Evidence 19. The Evidence in Chief of the parties was filed as Witness Statements in accordance with CMC directions. The two Defendants, the expert witness and the Claimant gave further testimony under cross-examination and re-examination at the Trial on November 24, The Expert Witness was the first to testify. An issue that arose on cross-examination was whether he had conducted his analysis of the questioned signatures on the Deed for the subject property by comparison with appropriate specimens. 21. In particular, under cross-examination Counsel for the Claimant pointed out to the expert that the First Defendant had only disclosed to the Claimant and the Court, 12 of the 13 specimens he used. Those 12 specimens were attached as K.M.7 to the First Defendant s Witness Statement. The Expert referred to those twelve in his report as A1 to A12. In addition, he also used another specimen referred to as A13 A photocopy sheet of paper containing writing headed Kazim Mohammed at the top. The writing comprised all capitals and numbers. 22. The Claimant objected to the use of this 13 th specimen and in response Counsel for the Defendants could not confirm that it had been previously disclosed. The failure to disclose the sample amounted to a breach of CPR That rule provides that a party who fails to give disclosure by the date specified in an order for disclosure may not rely on or produce any non-disclosed document at the Trial. 23. In the instant matter the parties had been directed to disclose all documents by March 17, 2016, several months before the trial. In light of the breach and the prejudicial effect of the expert s reliance on specimen A13 it was ruled inadmissible so that no further reliance could be placed on it by the Defendants and the expert. Since much of the expert s opinion was based on the inadmissible document, the probative value of his findings was adversely affected. 24. Further doubt was shed on the credibility of the expert s testimony when he admitted under cross-examination that he only looked at specimens submitted by the Defendants. None of the specimens disclosed by the Claimant were made available to him. Page 7 of 16

8 25. The First and Second Defendants were discredited under cross-examination in a number of material respects. A glaring area of concern as it relates to the evidence of the First Defendant was that he provided no explanation as to why, if he knew of a planned Deed since 2009 and saw it for the first time in 2013, he took no steps to have it revoked during the lifetime of his father or at all before this Claim was filed. The Second Defendant was combative under cross-examination adopting a particularly defensive demeanor when under cross-examination it became clear that he was literate, had attained tertiary level education, knew the difference between a Deed and a Will yet claimed he was only guided by his Aunt, the Claimant when he signed the Deed. 26. The Claimant on the other hand was not discredited under cross-examination. The parties filed Closing Submissions in writing after conclusion of the Oral Testimony of the witnesses. These submissions addressed the issues identified herein. Issue 1: the signature of the First Defendant 27. Counsel for the Claimant in submissions set the issue of the questioned signatures within the framework of the relevant statute. (Registration of Deeds Act Ch. 19:06) S7. (1) Any Deed may be registered (a) If the execution thereof by every party who, in Trinidad and Tobago, executes the same is made and attested as follows; that is to say, the Deed must be executed in the presence of one witness at least not being a party thereto and of a qualified functionary, and the signing and delivery thereof must be attested by one such witness at least subscribing his name with the addition of his place of abode or business and his profession, occupation or condition in life, and by the qualified functionary subscribing his name with the addition of his qualification under this section; and Page 8 of 16

9 (b) If the execution thereof by every party who, out of Trinidad and Tobago, executes the same is made and attested according to this Act. (2) A qualified functionary shall not subscribe a Deed under this section unless it bears the signature of some Attorney-at-law or certificated conveyancer as having prepared such Deed. S11. In all cases in which a Deed is executed by any person within Trinidad and Tobago, the affidavit or solemn declaration of the witness proving such execution may be made before a Judge of the Supreme Court, or Notary Public, or a Commissioner of Affidavits, or before any Justice by whom as a qualified functionary the signing and delivery of the Deed is attested. The affidavit or declaration may be in the Form A in the Schedule, and may be endorsed upon, or written at the foot or in the margin of, the Deed, or may be separate and refer to the Deed as an exhibit. S19. Every Deed or other document duly registered under this Act, or a copy thereof certified under the hand of the Registrar General or a Deputy Registrar General or by an Assistant Registrar General or any officer of the Registrar General s Department authorised in writing by the Registrar General personally, shall be admissible in evidence without any further proof of the execution or registration of the same. 28. Counsel for the Claimant submitted that DEED No. DE was properly executed and registered. It was for the purposes of section 19 of the Land Registration Act 1981 valid on its face. The 1st Defendant therefore bears the burden of proving that the Deed was not executed by himself and Hakim Mohammed on a balance of probabilities. Page 9 of 16

10 29. Regarding the signature of the First Defendant, the evidence of the First Defendant, as well as that of the Expert, are relevant. The First Defendant s evidence-in-chief on this issue is that he had never seen or signed this deed. He claims not to have been aware of the existence of the deed until 2013 when he went to the Ministry of Legal Affairs. He claims that he had gone to the Attorney s office as requested by his father to sign a document. He says his visit was sometime after his other relatives signed the document. Despite this he claims he met the Claimant and their sister, Shaliza at the Attorney s office. He says that when the effect of the document was explained to him by the Attorney he refused to sign it. 30. The Claimant s evidence is that the First Defendant came to the attorney s office and signed the deed in her presence and the presence of her father on the same day that his son the 2 nd Defendant signed. She also states that the First Defendant witnessed their father Hakim s signing of the deed. 31. The cross-examination of the First Defendant elicited certain discrepancies in his evidence. Regarding the purpose of his visit to Trinidad in March, 2009, he first claimed that he was there to oversee some electrical work on the house but further along in cross-examination, he admitted that he was told by his uncle Shaffie Mohammed that he should come to Trinidad because his father and sister wanted to make a deed. This change of position not only reduced his credibility but also is evidence that he had notice of the family s intention to conduct a transaction involving a Deed well in advance of his visit to the Attorneys office. 32. The First Defendant also acknowledged that the signature on the deed looked like his own handwriting but not like his signature. 33. The Expert, in his report concluded that it is highly probable that the two questioned signatures on the Deed were not executed by the writer of the specimens examined. According to his terminology list, this means that the conclusion falls short of the conclusive level but is still strong and persuasive and is within the virtually certain category. The cross-examination of the Expert on this point raised much doubt as to the sufficiency of the specimen samples analyzed. Page 10 of 16

11 34. Firstly, the Claimant s Attorney brought to the court s attention the document marked A13 provided by the Defendants to the Expert that was not disclosed to the court. This document, as stated by the Expert under cross-examination, was provided after a request was made by him to the Defendants for a further specimen. The document was professed by the second Defendant to be a sample of the First Defendant s handwriting in block letters. This non-disclosed sample was ruled inadmissible on an objection being raised by Counsel for the Claimant. The Claimant s Attorney also submitted that the Claimant provided many samples as attachments to her Reply and Defence to Counterclaim. These were not made available by the Defendants in instructing the Expert and did not form part of his analysis. 35. Secondly, the Claimant submits that none of the 12 disclosed samples contained a sample of the letter Z. This letter was stated in the analysis as one of the letters which contributed to the final conclusion. 36. As submitted by the Claimant, if the sample is defective, the methodology and analysis of the Expert is put into question. He explained this in more colourful language as garbage in garbage out. Although the expert s qualifications and truthfulness are not in doubt, the samples he was given have been proven to be defective in process and form with respect to this witness signature. Hence his opinion bears little weight in my determination herein. 37. The evidence points to the First Defendant having been aware that the deed was executed. His own son, the Second Defendant, signed the deed the day before. It is unlikely that after the Second Defendant signed the deed, the First Defendant would not have been aware of the contents of the deed until 2013 as he alleges. If it is true that the First Defendant became aware of the Deed he claims to be forgery in 2013 his failure to take action to have it revoked before the instant action defies logic. Overall the version of events given by this witness has been discredited through inconsistencies in his own cross-examination as well as with the evidence of the Second Defendant. Page 11 of 16

12 38. The First Defendant s awareness of the deed further weakens his position as his silence up until this claim was made would estop him from citing such forgery against the Claimant. This is so according to the authority of the Halsbury s 1 cited by both parties in their submissions as follows:: A deed, the signature to which is forged is a nullity; but if a man in whose name a deed is forged admits or represents the deed to be his; or keeps silent after the discovery of the forgery he may be estopped as against any persons who has altered his position on the faith of the admission, representation or silence from denying the deed to be his. Issue 2: the signature of the Deceased 39. The Expert s findings on the Deceased s signatures are as follows: It has been concluded that the two questioned signatures Hakim Mohammed (QS3 & QS4) on Exhibit Q1 were not executed by the B1 B13 specimen writer (Hakim Mohammed). 40. This rationale for this conclusion is stronger than that regarding Kazim Mohammed s signature. However, it was apparent from his cross-examination that the Expert did not fully consider the ill-health of the Deceased at the time of his signing and how that could have affected letter formation. 41. Further, the Claimant in her witness statement stated that she was present at the signing and witnessed her father signing the document. The Defendant admits in his witness statement at para. 11 that his father was unwell and not very mobile but that he wanted him to sign a document. 42. Overall, the Claimant s testimony appeared more credible than that of the Defendants in her description of the events leading up to the signing of the deed. 1 Halsbury s Laws of England/DEEDS AND OTHER INSTRUMENTS (VOLUME 32 (2012)) [262] Page 12 of 16

13 Issue 3: the misapprehension of the Second Defendant 43. The Second Defendant in his defence gives three separate explanations for his signature on the deed. Firstly, he states that the document he signed was of a different kind. Secondly, he avers that he executed the deed under a mistake as to its nature and contents and finally, he claims that he was fraudulently induced to sign the deed by the representation of the Claimant and the Attorney. 44. In his witness statement, he stated that he was misled by the Claimant and the Attorney to believe that the document was merely to give the Claimant permission to be an executor of the First Defendant s property. The only explanation given for having not read the document that he signed was that he was late for a flight to Tobago. 45. Under cross-examination his communication was fluent, coherent and at the level of a person who appeared not to have any intellectual deficiency. He was literate and stated that he had a university degree. He knew the difference between a will and a deed. He admitted he did not read the document he was signing reiterating that the reason for this was that he was late for a flight to Tobago when he signed it. 46. The Second Defendant s explanation for his alleged mistake in signing is unsatisfactory. He had a sufficient opportunity to read over the document and chose not to do so of his own volition. As cited by the Defendants in their submissions, a person seeking to raise a defence of non est factum must establish: (a) that there was a radical or fundamental difference between what he signed and what he thought he was signing; (b) That the mistake was as to the general character of the document as opposed to the legal effect; (c) That there was a lack of negligence i.e. that he took all reasonable precautions in the circumstances to find out what the document was. 2 2 Saunders v Anglia Building Society [1971] AC 1039 Page 13 of 16

14 47. Further, the local decision of Mr. Justice Boodoosingh in the case of Poodan v Ramnarine 3 cited the dicta of Lord Salmon in Gallie v Lee and Another 4 : If a person signs a document because he negligently failed to read it, I think that he is precluded from relying on his own negligent act for the purposes of escaping from the ordinary consequences of his signature. In such circumstances he cannot succeed on a plea of non est factum: this is not in my view a true estoppel, but an illustration of the principle that no man may take advantage of his own wrong. 48. Following the test outlined in Lloyd s Bank PLC v Waterhouse 5, Boodoosingh J explained at paragraph 15 of Poodan that, for non est factum to succeed, the Claimant must show that he was under a disability; that the document he thought he signed was fundamentally different from the document he thought he was signing; that he was not careless or negligent in signing. 49. The Second Defendant clearly did not take all reasonable precautions to ascertain the contents of the document and has not established that the Claimant s actions were deceitful as he had every opportunity to peruse the document he was signing. The alleged misrepresentation by the Claimant has not been borne out in evidence. Issue 4: equitable interest of the First Defendant 50. The Claimant has admitted in the reply to the defence and counterclaim that the First Defendant is entitled to a legal and equitable interest in the property based on the expenses he incurred less the benefit from living rent free. Neither party has made submissions on what the value of this benefit would be. The First Defendant has not submitted a total value for his expenditure but has annexed several receipts to his witness statement. The Claimant has not disputed these values. 51. Due to the lack of submission by the Claimant on the value of rent only a nominal sum can be determined to be deducted from the total cost of the First Defendant s 3 CV [1969] 1 All ER [1993] 2 FLR 97 Page 14 of 16

15 expenditure as the value of his equitable interest. I will accordingly award the amount of Ten Thousand Dollars ($10,000.00) as nominal damages to the Claimant. V. Conclusion 52. The Defendants have failed to sufficiently prove fraud on the part of the Claimant in both the alleged forgery of the signatures of the Deceased and the First Defendant and the alleged misrepresentation to the Second Defendant about the nature of the document due to the inconsistencies in their evidence on the events leading up to the signing of the document as well as the improper procedures followed in delivery of samples for the Expert. 53. They have, however, succeeded on the counterclaim in proving that the First Defendant is entitled to an equitable interest in the property. That aspect of the Counterclaim was however, admitted by the claimant prior to the trial, so the Defendants will not be awarded costs on that basis. 54. The total sum as calculated from the addition of all receipts for expenditure on the property annexed to the First Defendant s witness statement is Eighty Thousand, Seven Hundred and Sixty Dollars and Three Cents ($80,760.03). 55. The total value of the property as represented by the valuation report dated October 13, 2008 annexed to the First Defendant s witness statement is Seven Hundred and Sixty- Five Thousand Dollars ($765,000.00). Therefore, if that sum is accepted Six Hundred, Two Hundred and Eighty-Four Dollars and Ninety-Seven Cents ($684,239.97) would represent the value of the property less expenses and that remaining value of the property will be distributed equally among the Claimant, First Defendant and Second Defendant. It is noted however, that the Claimant had in her filed Reply pleaded as relief that there must be an updated valuation of the property. VI. Decision 56. It is hereby ordered as follows: a. An order that ALL AND SINGULAR that certain piece or parcel of land situated at #4 Last Street, Caroni Village, Caroni, in the Ward of Tacarigua, in Page 15 of 16

16 the Island of Trinidad in the Republic of Trinidad and Tobago comprising SIX THOUSAND TWO HUNDRED AND TEN Superficial feet delineated and coloured pink in the plan marked A attached to Deed No of 1960 and thereon shown as Lot No. 3 (South) Block No. 7 Jumbie Piece and bounded on the North by lands of R. Goolcharan on the South and East by lands now formally of Caroni Limited and on the West by a Road Reserved twenty seven and one half feet wide together with the buildings standing thereon and the appurtenances thereto belonging in Deed dated the 16 th day of March, 2009 registered as No. DE the said property ] be valued and advertised for sale forthwith and sold for the best price obtainable on the open market. b. The Registrar of the Supreme Court is directed to execute the conveyance of the said property in the event of default by any party. c. An order that the net proceeds of sale be distributed to the parties hereto in equal shares after payment to the First Defendant of Eighty Thousand Seven Hundred and Sixty Dollars ($80,760.03) representing the equitable interest of the First Defendant and after payment of all expenses associated with the sale including the cost of an updated valuation. d. The Defendants are to pay forthwith to the Claimant nominal damages in the amount of Ten Thousand Dollars ($10,000.00) in lieu of mesne profits. e. The costs of the Claimant for the Claim and for defending the Counterclaim are to be paid to the Claimant by the Defendants in the amount of Fourteen Thousand Dollars ($14,000.00). f. Liberty to Apply. Delivered by:.. Eleanor Joye Donaldson-Honeywell Judge Assisted by: Christie Borely Judicial Research Counsel I Page 16 of 16