IN THE HIGH COURT OF JUSTICE San Fernando Claim No. CV BETWEEN SIAN HUGGINS CLAIMANT AND

Transcription

1 The Republic of Trinidad and Tobago IN THE HIGH COURT OF JUSTICE San Fernando Claim No. CV 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 Page 1 of 27

2 which is properly described as All and Singular the property described in the Certificate of Title Vol 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. Page 2 of 27

3 (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 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 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 Page 3 of 27

4 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. Page 4 of 27

5 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) (ii) (iii) (iv) 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. 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. 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. An Order pursuant to sections 10 and 11 of the Wills and Probate Act 1 that 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. 1 Chapter 9:03 Page 5 of 27

6 (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 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 Page 6 of 27

7 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 Page 7 of 27

8 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 Page 8 of 27

9 Estates Act and the Court of Appeal decision of Rajkumar JA in Naeem Ali and anor v Lila Seetaram 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 Anor 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 Act 6 set out the conclusiveness of the register in the system of registration under the RPA. Section 37 provides: 3 CA S 196 of CV CV Chapter 56:02 Page 9 of 27

10 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 Page 10 of 27

11 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. Page 11 of 27

12 28. Section 143 of the RPA limits the persons who can attack the title of a registered proprietor. It provides that: 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 Ors 7 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 Page 12 of 27

13 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 & Ors 8 referring to Roberts v Toussaint and Ors 9 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 (1963) 6 WIR 431 Page 13 of 27

14 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 Page 14 of 27

15 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 Page 15 of 27

16 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 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 Based on the Defendant s evidence the Deceased was ill with a stroke in mid-june 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 Page 16 of 27

17 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, 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 The Deceased made it clear to her that she and the Claimant did not get along. She was not aware that Page 17 of 27

18 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. Page 18 of 27

19 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. Page 19 of 27

20 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 Page 20 of 27

21 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 Ors 10 Rampersad J applied the learning of the Privy Council decision in Penang Mining Co Ltd v Choong Sam 11. 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 [1969] 2 MLJ 52 Page 21 of 27

22 (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 Page 22 of 27

23 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. Page 23 of 27

24 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 Deeds 12 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 The Claimant s Deed where Leslie Lee Young transferred the said property to the Claimant 12 Chapter 19:06 Page 24 of 27

25 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. Page 25 of 27

26 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. Page 26 of 27

27 73. The Defendant to pay the Claimant s costs of the claim in the sum of $14, and the Counterclaim in the sum of $14, Liberty to apply. Margaret Y Mohammed Judge Page 27 of 27