IN THE HIGH COURT OF JUSTICE BETWEEN KIRK RYAN NARDINE RYAN AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV IN THE HIGH COURT OF JUSTICE BETWEEN KIRK RYAN NARDINE RYAN 1 st Claimant 2 nd Claimant AND KERRON ALEXIS Defendant Before the Honourable Madame Justice E. Donaldson-Honeywell Appearances: Sterling John instructed by Reynold Waldropt for the Claimants Orrin Kerr for the Defendant Date Delivered: September 21, 2015 RULING Page 1 of 12

2 Introduction: The Claimants secured mortgage financing and purchased a residential property [the property] at Penn Trace, Cunupia on February 4, They planned to move from the area where they lived and use the purchased property in Cunupia as a family home. However, before they could move in they found that other persons had broken the locks and moved their belongings into the premises. The Claimants removed the items and re-secured the property on more than one occasion but in their absence persons kept repeatedly entering and putting their belonging back into the premises. Eventually, on one of the Claimants visits to check on the property, they met the Defendant there. They say he claimed to be the owner. According to the Claimants the Defendant told them that his father was Selwyn Alexis alias Robocop and the people coming and going from the premises were the Defendant s tenants. [1] The Claimants are paying a monthly mortgage of Four Thousand, Five Hundred and Fourteen Dollars and Ninety-One Cents ($4,514.91) for the property which they do not have the benefit of occupying. Accordingly, by Fixed Date Claim the Claimants sought orders from the court to recover possession as well as damages for the time they were deprived of the property. [2] The Claimants filed a Claim Form and Statement of Case on the 16 th December, On the 23 rd February, 2015, the Defendant filed its Defence. Both parties also filed Witness Statements on that date. On 20 th March, 2015, the Claimants filed a Reply. [3] At a Case Management Conference [CMC] on April 20, 2015, then presiding Judge, Madam Justice Jones, directed that at the next CMC the parties should address the court and submit Authorities on whether the Defence discloses any grounds for defending the Claim. At the next CMC on June 8, 2015 the parties were not ready to address the court as directed. They requested more time as a particular aspect of the case was being considered regarding possible defects in title. The parties were directed to file Written Submissions; the Claimants to file and serve same on July 13, 2015 and the Defendant to file and serve on July 27, Only the Claimants complied with this direction by filing a Submission on July 13, In the Submission the Claimants seeks to persuade the court that Judgment should be entered in their favour against the Defendant pursuant to CPR Parts 15.2 (a) (Summary Judgement) and 26.1 (1) (k) (Judgment on a Claim in Case Management). Page 2 of 12

3 Factual Background: [4] The Claimants case is that they purchased the subject property in Cunupia from one Lisa Marie Hobson. Prior to the purchase they claim to have conducted a physical inspection of the property. After satisfying themselves that it was vacant they entered into an agreement for the purchase of the property. [5] The purchase was facilitated with a mortgage from Trinidad and Tobago Mortgage Finance Company ( TTMF ) and the Claimants paid for a title search to be done by TTMF attorneys. Only after it was deduced that the Vendor had good title were the Claimants able to secure the mortgage. [6] The sale was completed on 4 th February, 2013 following which, the Claimants entered into the property which they claimed was still vacant. The Claimants secured the property and left. Thereafter, they became aware that persons unknown to them were seen at the property. They attended the property and observed that locks had been tampered with and that there were signs of a person or persons being in the house. [7] Several attempts were made to secure the property including the changing of the locks, installing burglar proofing and reporting the incident to the police. On one occasion they encountered an individual who informed them that he was Kerron Alexis (the Defendant) and that he was the owner of the property. [8] The Claimants have continued to make mortgage payments although they have not been able to enjoy possession of the property. [9] The Defendant s case is that the title acquired by Lisa Marie Hobson was invalid due to fraud. He supports this allegation by claiming that the deed purportedly executed by his aunt, Theresa Williams (deceased) to Lisa Marie Hobson and Roland Williams in, 2007, was fraudulent. [10] The Defendant alleges that the said Theresa Williams normally executed documents using her signature and not her thumbprint as was the case in the deed in question. However, no documentary or other evidence of this has been provided. He further casts doubt on the transaction by stating that the said Theresa Williams would not have conveyed the property by gift to two complete strangers. There is no evidence of what relationship these persons had to each other. However, the deed appears to have been Page 3 of 12

4 validly executed on the face of it with a certification by an attorney-at-law that Theresa Williams executed the deed using her thumbprint. [11] The Defendant further points out that the interest of Roland Williams was transferred to Lisa Marie Hobson for a quarter of the selling price in the conveyance to one Jesse James. It must be observed however, that this is not per se an indication of any fraud. [12] Finally, the Defendant casts aspersions on the fact that the property was transferred to Jesse James and then transferred back to Lisa Marie Hobson for a quarter of the price paid. The Claimants explained, however, that the transaction was initially between them and Jesse James but he transferred the property back to Lisa Marie Hobson because he was leaving the country. [13] The Defendant admits in his Witness Statement that this is the limit of his understanding of what he refers to as the problems faced by the Claimants and that he has nothing to do with these issues as he is not the Legal Personal Representative of Theresa Williams. Issues: [14] The issue in the present case is whether Summary Judgment should be given for the Claimants on the grounds that the defence fails to disclose any realistic prospect of success. Disposition: [15] Having considered the Pleadings, Witness Statements and Written Submissions filed herein it is my finding that the Defence does not disclose any grounds for defending the Claim. The reasons for this finding, based on application of the law to the facts outlined above, are hereafter provided. Page 4 of 12

5 Reasons: [16] Rule 15.2(a) Civil Proceedings Rules, 1998 ( CPR ) provides: The court may give Summary Judgment on the whole or part of a Claim or on a particular issue if it considers that on an application by the Claimant, the Defendant has no realistic prospect of success on his Defence to the Claim, part of Claim or issue. [17] The Caribbean Civil Court Practice 2011 states at page 144: The test under Part 15 is whether there is a real prospect of success in the sense that the prospect of success is realistic rather than fanciful; when undertaking this exercise, the court should consider the evidence which can reasonably be expected to be available at trial. [18] In Western Union Credit Union Co-operative Society Limited v Corrine Amman 1 (followed in John v Allsop & ors 2 ) Kangaloo, J.A. gave the following guidance from Federal Republic of Nigeria v Santolina Corp [2007]EWHC 437 (CH) in dealing with applications for Summary Judgment: i) The court must consider whether the Defendant has a realistic as opposed to a fanciful prospect of success: Swain v Hillman [2001] 2 AER 91. ii) A realistic defence is one that carries some degree of conviction. This means a defence that is more than merely arguable: ED & F Man Liquid Products and Patel [2003] EWCA Civ. 472 at 8. iii) In reaching its conclusion the Court must not conduct a mini trial : Swain v Hillman [2001] 2 AER 91. iv) This does not mean that the court must take at face value and without analysis everything the Defendant says in his Statements before the court. In some cases it may be clear there is no real substance in the factual assertion made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel EWHC 122. v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for Summary Judgment but 1 CA 103/ CV Page 5 of 12

6 also the evidence which can reasonably be expected to be available at trial: Royal Brompton NHS Trust v Hammond (No 5) [2001] EWCA Cave 550. vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on Summary Judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63. [19] In order to determine whether the Defence discloses a basis for defending the Claim the Claimants case must first be examined. They rely solely on their documentary title to the land. As stated in Ocean Estates Ltd v Pinder 3 and approved in the local decision of Goodridge v Nagassar 4 : Where questions of title to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival Claimants. If party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land. It follows that as against a Defendant whose entry upon the land was made as a trespasser, a Plaintiff who can prove any documentary title to the land, is entitled to recover possession of the land unless debarred under the Real Property Limitation Act by effluxion of the twentyyear period of continuous and exclusive possession by the trespasser. [20] The Claimants in the present case have documentary title to the land in question and have therefore established their title in the present Claim. [21] Therefore, in accordance with the guidelines established in Western Union Credit Union above, what needs to be determined in the present case is whether there is a realistic defence that has some degree of conviction. The court must take into account not only the 3 [1969] 2 A.C. 19 Page 25 4 C.A. 243 of 2011 Page 6 of 12

7 evidence placed before it on the application but also the evidence which can reasonably be expected to be available at trial. [22] A defence to a Claim for recovery of possession must refute the Claimants Claim to title and/or possession by proving that the Defendant has a better title or entitlement to possession. If, as in this case, the Defendant pleads in his Defence that someone else, a third party, has a better title than the Claimants that is of no value per se in defending a Claim for possession. [23] The Defendant s pleading herein is that the estate of his deceased aunt has a better title to the property than the Claimants. He says this is so because he claims that in 2007 there was a fraudulent conveyance without the aunt s permission to one of the Claimant s predecessors in title. The Defendant admits that his aunt s estate was never administered and he is not the Personal Representative of her estate. Accordingly, he has no connection with any claim to fraud she may have had against those persons that owned the property before the Claimants. The aunt died sometime after the 2007 conveyance, the Defendant claims was fraudulent. Neither the Defendant nor anyone else could have obtained a right to occupy the premises by adverse possession in the years that passed since then. [24] In any event the Defendant has not even pleaded in his Defence that he was at any time in possession of the property. Instead at paragraphs 5, 6, and 10 he pleads that the land was occupied by persons and occupants and he does not name them or say on what basis they were entitled to occupy the premises. The Claimants allege at paragraph 18 of the Statement of Case that the Defendant told them that he was the owner of the premises and the people that were repeatedly entering it were his tenants. The Defendant does not admit that he made that statement to the Claimants, so again there is no indication in his Defence that he had possession of the property. [See Para 13 of the Defence]. [25] At paragraph 18 of the Defence the Defendant raises an allegation of fraud. The allegation is that conveyances prior to the Claimants purchase of the property were fraudulent. It is further contended that if not for these fraudulent conveyances the property would have remained part of the estate of his aunt Theresa Williams who he admits died intestate. The basis for the Defendant s allegation that the conveyance from Theresa Williams to Lisa Marie Hobson and Roland Williams in 2007 was fraudulent is that her thumbprint was used in the conveyance instead of her signature. He alleges that it was Page 7 of 12

8 customary for his aunt to use her signature in executing documents. This basis for the allegation of fraud is not properly substantiated save that he pleads that his aunt was literate and would not have signed with a thumbprint. He further states that the conveyance was suspicious as the Donnees were complete strangers to Theresa Williams. [26] The Defendant in his Witness Statement says he has set out all he knows concerning the alleged fraud. He has stated that what is contained in his Statement is the limit of his understanding of what he refers to as the problems faced by the Claimants. It is evident, therefore that in the circumstances of the present case, it is unlikely that further evidence will be adduced by the Defendant at trial. Therefore the case can primarily be judged on the facts and evidence led by the Defendant at this stage as no further evidence can reasonably be expected at trial. [27] In determining whether the Defendant s case based as it is on a bare assertion of fraud discloses a realistic defence, the local decision of L anse Fourmi Trust Holding Company Limited v Anse Fourmi Beach Rainforest Resort Limited 5 provides some guidance. Charles, J stated therein that: Fraud, of whatever sort, is always a matter of inference from the facts alleged: where any inference of fraud or dishonesty is alleged, the party must list the facts on the basis of which the inference is alleged. 6 [28] Fraud is a serious allegation and, as such, it requires a Claimant to provide sufficient notice of the facts upon and from which the court is invited to find and infer fraud. As cited by Charles, J in the L anse Fourmi case, Lord Watson in Wallingford v Mutual Society and Official Liquidator 7 opined: My lord, it is a well-known and very proper rule that a general allegation of fraud is not sufficient to infer liability on the part of those who are said to have committed it... [it] would require the parties to state a very explicit case of fraud, or rather of facts suggesting fraud, because I cannot think that a mere statement that fraud has been committed, is any compliance with the words of that rule which require the Defendant to state facts entitling him to defend... [it] requires not only a general and vague allegation but some actual fact or circumstance or 5 CV Bullen & Leake & Jacob s Precedents of Pleadings, 15th Edition, 2001, para (1880) 5 App Cas 685, 709 Page 8 of 12

9 circumstances which taken together imply, or at the very least very strongly suggest, that a fraud must have been committed, those facts being assumed to be true. [29] Further, in Wallingford v Mutual Society and Official Liquidator, Lord Selbourne held that the use of the word fraudulently of itself does not establish fraud. He opined:... I take it be settled as anything well can be by repeated decisions, that the mere averment of fraud, in general terms, is not sufficient for any practical purpose in the defence of a suit. Fraud may be alleged in the largest and most sweeping terms imaginable. What you have to do is, if it be [a] matter of account, to point out specific error, and bring evidence of that error, and establish it by the evidence. Nobody can be expected to meet a case, and still less to dispose of a case, summarily upon mere allegations of fraud without any definite character being given to those charges by states the facts upon which they rest. [30] The allegations set out by the Defendant in his Defence and Witness Statement comprise no more than bare assertions of fraud. There is neither any evidence to support his statements nor particulars of any fraudulent activity. [31] The Defendant has failed in this regard to set up any real defence based on fraud with a realistic prospect of success. [32] Even if the allegations and particulars set out in the Defence and Witness Statement were considered to be sufficient to evince fraudulent activity, the Defendant s case does not plead or provide any evidence that the Claimants were involved in any of the alleged fraudulent actions alleged therein. [33] The Fraud Claim must fail against the Claimants because it is an allegation not against them but against a predecessor in title. The Fraud Claim if true would give the estate of Theresa Williams an equitable interest in the property. The Claimants title however would take precedence over such an interest unless it could be shown that they had prior knowledge of it. [34] Halsbury s Laws of England Equitable Jurisdiction (Vol. 47 (2014) para. 124 states: where there is an existing equitable interest in property and an interest is subsequently created in favour of a purchaser for value without notice of the earlier interest and that purchaser gets in the legal estate at the time of his purchase or in Page 9 of 12

10 certain circumstances after his purchase, his possession of the legal estate gives him priority over the earlier equitable owner. [35] There are three main requirements for a purchaser to be considered a bona fide purchaser for value without notice 8. Firstly, the purchaser must have gained the legal interest in the property. Secondly, the purchaser must have given value for the property. Thirdly, the purchaser must not have had notice of any equitable interest at the time when he or she gave consideration for the conveyance. [36] In the present case, the Defendant has failed to lay a foundation in the Defence or his Witness Statement to establish that the Claimants do not meet the requirements to be treated as having had no notice of the alleged fraud. Instead, on the pleadings and evidence as they stand the Claimants were bona fide purchasers for value without notice as: a. They were the purchasers of the legal estate; b. They have taken a mortgage for payment of the purchase price; and c. There is no allegation they were either participants in the alleged fraud or had notice of any fraudulent conveyance. [37] In order to succeed in a Defence against the Claimants the Defendant must therefore prove that they had notice of the alleged fraud and any resulting equitable interest. There is nothing in the Defence to point to any actual or constructive notice of such fraud so as to prove that the Claimants were anything other than bona fide purchasers for value without notice of any fraud. In any event, investigations on title by the Claimants were conducted and would not have revealed any suspicious transactions or fraudulent conduct. A title search could not have provided any information with regard to the circumstances of Theresa Williams that may have caused her to sign with a thumbprint. If a title search had revealed that Theresa Williams signed other deeds in writing even that would not be conclusive proof that she could not have executed the conveyance in question with a thumbprint, due to illness or infirmity. In any event no example of any other deed signed by Theresa Williams is disclosed or referred to by the Defendant. 8 Snell s Equity, McGhee J. Q.C, 31 st Edn, paras to 4-45 Page 10 of 12

11 [38] The Claimants, therefore, cannot be shown to be other than bona fide purchasers of the legal estate for value without notice of any equitable interest in the property that could be claimed by the Defendant from the estate of Theresa Williams. Conclusion: [39] There is nothing in the Defence or the Witness Statement to support that the title put forward by the Claimants is defective because of an earlier fraudulent conveyance. Even if there had been such evidence there is nothing to indicate that the Defendant has locus standi to claim on behalf of his alleged aunt that she did not execute the conveyance in question. [40] The Defendant has failed in his defence to substantiate that he either has title or the right to possession of the property. He claims the property was his aunt s and that it still forms part of her estate but he has shown neither proof of his relationship with the aunt nor any basis whereby he can hold the property for her estate. Furthermore, the Defendant s only defence is that of fraud and he has failed to properly show that there was any fraudulent transaction in the chain of title. In any event the Claimants have a complete answer to any Claim of a prior equitable interest resulting from any fraud as there is no indication that they are other than bona fide purchasers for value without notice. [41] Thus, the Defendant has no realistic prospect of succeeding in his Defence at trial and Summary Judgment is hereby given in favour of the Claimants in this matter. Order: [42] There will be Judgement for the Claimants as follows: a. The Court declares that the Claimants are entitled to exclusive possession of the premises located at and known as #1505 Penn Trace, Cunupia; b. The Defendant whether by himself, his servants or agents or howsoever otherwise is restrained from entering upon, dealing with in any way and/or trespassing upon the premises described at a. above; c. The Defendant whether by himself or his servants or agents or howsoever otherwise is restrained from physically or verbally abusing the Claimants; Page 11 of 12

12 d. The Defendant do pay to the Claimants mesne profits, damages and interest on damages to be assessed in default of agreement; and e. The Claimants are awarded prescribed costs of Fourteen Thousand Dollars ($14,000.00) to be paid by the Defendant. Eleanor J. Donaldson-Honeywell Judge Assisted by: Christie Borely Attorney-at-Law Judicial Research Counsel Page 12 of 12